Appellant: R E Conway, solicitor advocate; Bonnar & Co

Respondents: J R Campbell, QC; McClure Naismith

29 April 2010

[1] I agree with the Opinion of Lord Carloway and concur in the disposal which he proposes. I add a few observations of my own.

[2] The origins of the doctrine of vicarious liability are obscure, its basis uncertain. The traditional test adopted in the law of Scotland, as well as in that of England, for vicarious liability of an employer for an act of an employee is that expressed in Salmond, Law of Torts, 1^st ed. (1907) at page 83, namely, where the wrongful act is done "in the course of the [servant's] employment" being "either (a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master" (see also Salmond and Heuston, Law of Torts, 21^st ed., page 443; Kirby v National Coal Board 1958 SC 514, per Lord President Clyde at page 533).

[3] No difficulty ordinarily arises about (a) - indeed it may be doubtful whether it is truly a case of vicarious liability at all, rather than of direct fault of the employer. Difficulties have, however, been encountered with the application of (b). A narrow approach to that test led to the decision in Trotman v North Yorkshire County Council [1999] LGR 584, overruled by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. In the latter case Lord Steyn noted at pages 223-4 that Salmond himself had also said (1^st ed., pages 83-4) that "a master is liable even for acts which he has not authorised provided that they are so connected with acts which he has authorised, that they may rightly be regarded as modes - although improper modes - of doing them" (Lord Steyn's emphasis). Acknowledgement of that wider ambit to (b) allowed Lord Steyn to formulate the relevant question as "whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable". On the facts of Lister he answered that question in the affirmative. Lord Hutton and Lord Hobhouse of Woodborough agreed with Lord Steyn, the latter giving additional reasons for his concurrence. Lord Clyde and Lord Millett also concurred but expressed their reasons separately.

[4] Lord Clyde (at para 42) emphasised that in considering the scope of the employment a broad approach should be adopted. If that approach is adopted, "it becomes inappropriate to concentrate too closely upon the particular act complained of" (para 43). "... while consideration of the time at which and the place at which the actings occurred will always be relevant, they may not be conclusive" (para 44). Mere opportunity afforded by the employment will not suffice (para 45). As to the particular circumstances of Lister the wrongdoer's "position as warden and the close contact with the boys which that work involved created a sufficient connection between the acts of abuse which he committed and the work he was employed to do ... Given that he had a general authority in the management of the house and in the care and supervision of the boys in it, the employers should be liable for the way in which he behaved towards them in his capacity as warden of the house" (para 50).

[5] Lord Millett opined (para 65) that the employer "is liable only if the risk is one which experience shows is inherent in the nature of the business". In discussing cases concerning property he says:

"The cases show that where an employer undertakes the care of a client's property and entrusts the task to an employee who steals the property, the employer is vicariously liable ... Experience shows that the risk of theft by an employee is inherent in a business which involves entrusting the custody of a customer's property to employees. But the theft must be committed by the very employee to whom the custody of the property is entrusted ... He takes advantage of the position in which the employer has placed him to enable the purposes of the employer's business to be achieved" (para 79).

In addressing the particular facts of Lister Lord Millett said:

"[The warden] was employed to discharge the school's responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys." (para 82).

That position he contrasted in the same paragraph with that of the groundsman or the school porter.

[6] Lord Hobhouse's additional reasons adopted a somewhat different approach, which for the purposes of this opinion I find it unnecessary to explore.

[7] The central emphasis of the majority of their Lordships was on the close connection between the task with which the employee had been charged and the conduct complained of - that in the particular circumstances being demonstrated by the entrustment of the boys to the charge of the warden in furtherance of the employer's business.

[8] The approach of Lord Millett and Lord Steyn was, in very different circumstances, approved by Lord Nicholls of Birkenhead in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 at para 23. Lord Slynn of Hadley and Lord Hutton agreed with Lord Nicholls. See also Lord Millett at para 129.

[9] In Bernard v The Attorney General of Jamaica [2004] UKPC 47 (another case of intentional tort) Lord Steyn, delivering the advice of the Privy Council, observed (at para 18) that Lister "emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeaser's employment."

[10] In the present case the delict averred is that Reid seized the pursuer's ponytail tightly and pulled her head back, causing her injury. He is said to have made a "ribald" remark as he did so. This conduct may be seen against the background that, according to the pursuer's averments, Reid had on around three prior occasions approached the pursuer by surprise from behind and nudged her in the hips. It is also averred that Reid "had engaged from time to time in horseplay with another female employee of the defenders, Irene Brewster. He would on occasions tug her hair and pat her bottom". The delictual incident may accordingly be seen as a form of horseplay, possibly with sexual overtones.

[11] Reid's employment is averred to be that of "Supervisor" - although another (male) employee stood in the line of management structure between him and the pursuer. Reid's principal task was in selecting goods from the defenders' cold store warehouse. But he had a desk in the portacabin office where the pursuer worked and spent most of his day there. The averments continue:

"Gary Reid instructed the pursuer in her duties from time to time, and his position as Supervisor meant that he was responsible inter alia for the implementation of the defenders' policy with regard to health and safety at work. For example he sometimes advised the pursuer not to attempt to lift items which he believed were too heavy for her."

[12] It is not suggested on averment that Reid's delictual conduct was in any way connected with the performance of his assigned work as supervisor nor with his responsibility for health and safety. While his conduct can plausibly be regarded as quite inconsistent with due regard for health and safety, it was not behaviour in the exercise of his responsibility for those matters. Nor was it done in the exercise of any supervisory role. In these circumstances the pursuer's case on averment clearly fails the test of a close connection between the wrong and the employment. It is accordingly unnecessary to address the further question - which is one of legal policy - as to whether it was so closely connected with the employment that it would be fair and just to hold the employers vicariously liable.

[13] As Lord Millett observed in Dubai Aluminium Co Ltd v Salaam at para 129 the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. Some circumstances may lie close to the line which divides cases where there is vicarious liability from those where there is not. The circumstances figured by way of contrast in Deatons Pty Ltd v Flew (1949) 79 CLR 370 - where the barmaid might have thrown the glass of beer as an incident of what she was employed to do - might be close to that line (see Lord Millett in Lister at para 81). The position of the security guard who committed arson while on patrol (Photo Productions Ltd v Securicor Transport Ltd [1980] AC 827) may, on closer examination, be closer to the line than Lord Salmon (at page 852) may have thought. Potentially close to the line was also the intemperate restaurant manager in Cercato-Gouveia v Kyprianou [2001] EWCA Civ 1887. On the other hand, the bullying and harassing conduct of the departmental manager in Majrowski v Guy's and St Thomas's NHS Trust [2005] 1 QB 848 (affirmed [2007] 1 AC 224) was clearly behaviour in exercise of her supervisory function. In any uncertain case the seminal judgments of the Supreme Court of Canada in Bazley v Curry 174 D.L.R. (4^th) 45 and Jacobi v Griffiths 174 D.L.R. (4^th) 71 will require to be considered. Such consideration is not required in this case.

Appellant: R E Conway, solicitor advocate; Bonnar & Co

Respondents: J R Campbell, QC; McClure Naismith

29 April 2010

[14] I agree that the appeal should be refused for the reasons given by your Lordship and Lord Carloway, and have nothing to add.

Appellant: R E Conway, solicitor advocate of; Bonnar & Co

Respondents: J R Campbell, QC; McClure Naismith

29 April 2010

(1) Pleadings and Dismissal

[15 ] The pursuer seeks reparation from the defenders in respect of an incident which occurred on 20 August 2004. At about 11.00 am she was working in the course of her employment with the defenders as a "goods in/goods out" clerkess at their frozen food depot in the Motherwell Food Park, Bellshill. The pursuer worked in a Portacabin along with a fellow clerk, a chief clerk and their supervisor, namely Gary Reid, with whom she had a friendly working relationship. Mr Reid's main duties were the selection of goods from the storage facility, but he spent much of his time at his desk in the Portacabin. The pursuer avers that, as a supervisor, Mr Reid:

"was responsible inter alia for the implementation of the defenders' policy with regard to health and safety at work. For example he sometimes advised the pursuer not to attempt to lift items which he believed were too heavy for her".

[ 16 ] The pursuer wore her hair in a ponytail. She narrates the circumstances of the incident as follows:

"Gary Reid crept up behind the pursuer whilst she was sitting on her chair typing. Without warning, he grabbed her ponytail tightly and pulled her head back as far as it could go. As he pulled her head back he made a ribald remark".

As a result of the incident, the pursuer was injured. Over the two years prior to the incident, Mr Reid had engaged from time to time in "horseplay" with the pursuer's fellow clerkess; also tugging her hair. He had also surprised the pursuer on three previous occasions by approaching her from behind and "nudging her in the hips".

[ 17] The pursuer seeks to hold the defenders vicariously liable for the actings of Mr Reid in pulling her ponytail. She avers:

"The defenders had a duty to take reasonable care for the safety of their employees such as the pursuer, and not to expose them to unnecessary risk of injury. As supervisor Gary Reid was entrusted with the implementation of that duty. Gary Reid was under a duty to prevent dangerous horseplay taking place, and should not have indulged in it himself. In the circumstances his actions were closely connected with his employment, and the defenders are vicariously liable therefor".

[ 18] The use of the words "closely connected with his employment" are designed to bring the case within the ambit of certain dicta in Lister v Hesley Hall [2002] 1 AC 215 (infra). The words were incorporated into the pleadings by way of amendment in the Inner House; the Sheriff having dismissed the action as irrelevant, after a debate, on 11 December 2008. But the Sheriff was well aware of Lister. He summarised the basis for his decision in a succinct passage of his Note:

"[93] ...were the pursuer to establish, at proof, everything which she avers, she would not succeed. The case is not even of doubtful relevancy. The actionsactings of Gary Reid cannot be said to be inextricably interwoven with the carrying out of his duties as supervisor. ...It is conceded that, whatever his duties were, he did not require to resort to violence, to achieve them. There is no question of the employers' objectives only being achieved with a serious risk of such a wrong being committed. The risk is not inherent, or reasonably incidental. If the cCourt asks itself the question: 'Approaching the matter broadly, was the assault by Gary Reid so closely connected with what the defenders authorised or expected of him in the performance of his duties as supervisor, that it be fair and just to conclude that the defenders are vicariously liable for the injury the pursuer sustained?' then the answer is 'No'. Looked at broadly, and in the round, the facts which the pursuer offers to prove, fail to demonstrate any closeness of connection between the wrong doing and the employee's duties, . Nnor do they demonstrate that it is just and fair in the whole circumstances that the defenders be found liable".

The Sheriff clearly attempted to apply the various, perhaps differing, tests in Lister (infra) to the pursuer's particular circumstances. On each occasion, he determined that they negatived liability.

(2) Submissions

(a) THE PURSUER

[ 19] The pursuer helpfully produced a written outline of his submission and amplified it in oral argument. He advanced five general propositions. First, "...the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing" (Dubai Aluminium Co v Salaam [2003] 2 AC 366, Lord Millett at para 129). Secondly, one acknowledged category of case is where the employer has, or has assumed, a duty of care or responsibility towards the victim, which he has entrusted to the employee to discharge. "Where these conditions are satisfied, the motive of the employee and the fact that he is doing something expressly forbidden and is serving only his own ends does not negative the vicarious liability for his breach of the 'delegated' duty" (Lister v Hesley Hall (supra), Lord Hobhouse of Woodborough at para 55). Thirdly, where the duties of the party primarily liable are legally capable of attracting vicarious liability, the determination of whether they were so performed is a question of fact. In borderline cases the decision may properly go either way. "Unless, however, the conclusion of the tribunal of fact is not legally capable of being derived from the primary facts, or is contradicted by them, then its determination must be respected" (Lord Millett op cit at para 112). Fourthly, the pursuer offered to prove that: (i) the defenders owed a her a duty of care; (ii) the defenders had delegated supervision of that duty to Mr Reid; (iii) Mr Reid had actual or potential supervision and control of the pursuer's work; (iv) instead of carrying out his supervisory duties, Mr Reid indulged in horseplay with reckless disregard for the safety of the pursuer; and (v) in all the circumstances it would be fair, just and reasonable to hold the defenders vicariously liable for his actings. Fifthly, the court should be slow to reach a conclusion on the pleadings. It cannot be said that the pursuer must necessarily fail (Jamieson v Jamieson 1952 SC (HL) 44; Miller v SSEB 1958 SC (HL) 20.

[ 20]] The law was as stated in Lister v Hesley Hall (supra) and the correct question was whether Mr Reid's actions were so closely connected with his employment that it would be fair and reasonable just to hold the defenders vicariously liable (Lord Steyn at para 28). A broad approach was required. Time and place were relevant, but not conclusive. There required to be a greater connection between the act and the employment than mere opportunity created by access to the premises (Lord Clyde at paras 43 - 45). If the employer were entrusted with the safekeeping of a person and he delegated that trust to an employee, it may not be difficult to demonstrate a sufficient connection (Lord Clyde at para 46; Lord Hobhouse at para 55). The Court should ascertain the duty of care owed by the employee to the pursuer and the contractual duty of the employee to the defenders (Lord Hobhouse at para 60 - 62). One factor was where Mr Reid stood in the hierarchy of employees. Inherent risk in the work was another factor (Lord Millett at para 65), although not an important one in this case. What was critical was the closeness of the connection between the employee's duties and the wrongdoing (Lord Millett at para 70). Lister v Hesley Hall (supra) had been correctly interpreted in Balfron Trustees v Peterson [2001] IRLR 758 (Laddie J at para 33) and applied in Dubai Aluminium Co v Salaam [2003] 2 AC 366 (Lord Nicholls of Birkenhead at para 36; Lord Millett at para 129). Ward v Scotrail Railways 1999 SC 255 had involved employees at the same hierarchical level and no vicarious liability therefore arose. The employee was indulging in an "unrelated and independent venture of his own" (Lord Reed at 264; cf Gibson v British Rail Maintenance 1995 SC 7).

[ 21] In Royal Bank of Scotland v Bannerman Johnstone Maclay 2005 SC 437, the desirability of hearing the evidence was emphasised (LJ-C (Gill) at paras 62, 68). Similar considerations were applied in English "striking out" applications (Cercato-Gouveia v Kyprianou, unreported, [2001] EWCA Civ 1887, Dyson LJ at 23). Reference was also made to Ministry of Defence v Radclyffe, unreported, [2009] EWCA Civ 635. The risks inherent in the work wasere stressed in Majrowski v Guy's and St Thomas's NHS Trust [2005] QB 848 (Auld LJ at paras 56 - 58; [2006] 3 WLRaffirmed [2007] 1 AC 224) 125) and Bernard v Attorney General of Jamaica, unreported, [2004] UKPC 47; cf Brown v Robinson, unreported, [2004] UKPC 56). There was no high risk of dangerous horseplay in the workplace, but it did happen, even if the risk category was not the same as abuse of children in residential homes or assaults on the public by nightclub doormen or armed policemen.

(b) THE DEFENDERS

[ 22] The broad proposition of close connection required to be examined in its context in Lister v Hesley Hall (supra). There has to be so close a connection between the particular wrong and the employment of the person who committed the wrong that it becomes fair and reasonable that the employer be found vicariously liable. One strand is the introduction of risk and inherent risk in the employee's work. Vicarious liability will follow if the act is inextricably interwoven with the employee's duties. In this case there was no connection, in the sense described by Lord Hobhouse (at para 59), between the wrong committed and Mr Reid's employment. There was no equivalentce between this case and the circumstances in Lister. If a health and safety officer assaults an employee, he has stepped outwith his role and is no longer acting as a safety officer. He is not taking advantage of being a safety officer. Mr Reid was not acting as a supervisor when carrying out the assault.

[ 23 ] As was said in Bazley v Curry [1999] 174 DLR (4^th) 45 (McLachlian J delivering the judgment of the Court at para 42), "an incidental or random attack by an employee that merely happens to take place on the employer's premises during working hours will scarcely justify holding the employer liable" (cf Gravil v Redruth RFC [2008] IRLR 829; Mattis v Pollock [2003] 1 WLR 2158; Cercato-Gouveia v Kyprianou (supra) Dyson LJ at para 20). This could be compared to cases where the act complained of was reasonably incidental to the business of the employer (eg Bernard v Attorney General of Jamaica (supra); cf Brown v Robinson (supra); Majrowski v Guy's and St Thomas's NHS Trust (supra) Auld LJ at paras 58 - 59; May LJ at paras 80 -84). If it was being suggested that an unprovoked assault, which had nothing to do with the employment, gave rise to vicarious liability only where the assailant were further up the hierarchical tree then that was irrational in so far as what might be regarded as fair and reasonable just was concerned. There was nothing in the averments to suggest that Mr Reid was doing anything in his capacity as supervisor or health and safety officer or that there was any connection between the wrongdoing and his employment.

3. Decision

[ 24 ] This is a straightforward situation in which one employee has, in effect, assaulted a fellow employee in the course of a prank. The incident took place in their employer's premises, when both were supposed to be engaged in clerical, or office, work. The only issue is whether the assault gives rise to vicarious liability on the part of the employer. In argument, there was much analysis of the content of the four speeches in Lister v Hesley Hall (supra). It should be recognised at the outset that the facts in that case were radically different from those of the present. The initial bases for the claims in the lower courts appear to have been unusual. The dicta of the different judges in the House of Lords are not all entirely consistent. Nevertheless, the case must now be taken as definitive in establishing when vicarious liability is to attach to an employer for his employee's actings.

[ 25] Ultimately, the question of whether an employer is to be vicariously liable for the actings of his employee is to be answered by deciding whether the actings are so closely connected with the employment that it would be "fair and just" to find the employer liable (Lister v Hesley Hall (supra), Lord Steyn at 28). The test is an extremely broad one which may, no doubt, be an important one where new circumstances of potential liability are to be examined. From a practical point of view, however, the ground in this case, of pranks between co-employees, is well trodden. Within the context of the broad test is the well established and fundamental principle of finding vicarious liability applicable when the actings of the employee can be said to be within the scope of his employment.

[ 26 ] Thus, Lord Steyn (with whom Lords Hutton and Hobhouse agreed) considered that Salmond was correct when describing the necessity for the actings to be within the "course" of employment and stating (Salmond on Torts 1^st ed. pp 83-84; Salmond and Heuston on Torts (21^st ed) p 443)) that:

"a master...is liable for acts which he has not authorised, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes - though improper modes - of doing them" (Lord Steyn at para 15).

An act will therefore be regarded as within the scope of employment if it has that degree of connection. The Salmond formulation is a "broad" or "practical" test of when acts fall to be regarded as within the course of employment and when they do not (para 20). The manner in which Lord Steyn therefore analysed the liability of the defendants in Lister was to look at what their business was, and the part played in that business by the employee, and to consider whether sufficient connection had been established between the employee's actings and what he was supposed to be doing (para 20).

[ 27] Lord Clyde's analysis is equally instructive. He too emphasised the importance of the traditional approach when stating that:

"In accordance with well-established law the question is whether the conduct fell within the scope of the employment" (para 33).

He also focused on Salmond's phraseology and continued (para 37):

"What has essentially to be considered is the connection, if any, between the act in question and the employment. If there is a connection, then the closeness of that connection has to be considered. The sufficiency of the connection may be gauged by asking whether the wrongful actings can be seen as ways of carrying out the work which the employer had authorised".

Lord Clyde (at para 41) quoted the dicta of the Lord President (the second Lord Clyde) in Kirby v NCB 1958 SC 514 (at 532) to the effect that it was not possible to lay down an exhaustive definition of what falls within the scope of employment. He went on, under reference to several celebrated vicarious liability cases, to provide some useful guidance applicable in cases such as the present.

[ 28] First, a broad approach should be adopted. Thus the context of the act complained of should be looked at and not just the act itself (para 43; cf Trotman v North Yorkshire County Council [1999] LGR 584, Butler-Sloss LJ at para 18). Secondly, time and place were always relevant but may not be conclusive.

"That an act was committed outside the hours of employment may well point to it being outside the scope of the employment. But that the act was done during the hours of the employment does not necessarily mean that it was done within the scope of the employment. So also the fact that the act in question occurred during the time of the employment and in the place of the employment is not enough by itself." (para 44)

Thirdly, the fact that the employment provides the opportunity for the act to occur at a particular time and place is not necessarily enough.

"In order to establish a vicarious liability there must be some greater connection between the [wrongful] act of the employee and the circumstances of his employment than the mere opportunity to commit the act which has been provided by the access to the premises which the employment has afforded." (para 45).

Most helpfully he quoted from Lord Cullen (at para 47), with whom the Lord President (the first Lord Clyde) agreed, in Central Motors (Glasgow) v Cessnock Garage and Motor Co 1925 SC 796 where he noted (at 802) that the difficulty can be "in deciding whether a particular act falls within the 'purely personal and independent sphere of life and action' which an employee may enjoy".

[ 29] Lord Hobhouse at times appears to be developing a theory based upon the relationship between the employer and the victim (paras 54, 55 and especially 60; see also Balfron Trustees v Peterson (supra), Laddie J at para 27), something which has not normally been regarded as directly relevant to vicarious liability. But he does appear to accept at least the practical advantages of the tests used in Salmond and "the Scottish cases" (paras 59, 60). Lord Millett places emphasis on the inherent risks attaching to a particular employment (para 65, 82), but he too does not challenge the utility of Salmond's approach (para 70). He expressly adopted the test of close connection, not between employer and victim but between the employee's tasks and the wrongful act (para 70, Dubai Aluminium Co v Salaam (supra) para 129).

[ 30] Ultimately, in a case of the present type, there is much to be said for asking, within the context of establishing the close connection and thus that the employee was acting within the scope of his employment, the question of whether, on the contrary, the employee was engaged in a "frolic" of his own (Williams v A & W Hemphill 1966 SC (HL) 31, Lord Pearce at 46, adopted by Lord Steyn as "A good illustration of the correct approach" at para 18).

[ 31 ] It falls to apply the general principles to the facts averred. In doing this, it is helpful to look at particular cases where an employee has committed an assault, in a broad sense, or otherwise injured someone in the course of a prank. There are, of course, several Scottish cases on the subject, often involving transport officials dealing with passengers. The Court was referred primarily to several English and Jamaican cases, presumably because they generally followed upon Lister. All of these essentially illustrate that where an employee, in using violence, is engaged upon something connected with his employer's business (i.e. is carrying out a task associated with his duties), the employer is vicariously liable. Thus the night club or stadium owner may be liable for over zealous conduct on the part of their stewards (Mattis v Pollock (supra); Brown v Robinson (supra)). The sports club will be liable for its player's use of excessive force to overcome opponents (Gravil v Redruth RFC (supra)). The restaurateur may be liable for his manager's aggressive mode of dismissal (Cercato-Gouveia v Kyprianou (supra)). The police authority may be liable if one of their officers acts violently even if off duty, where such off duty actions are permitted and prepared for (Bernard v Attorney General of Jamaica (supra)). The army may be liable for the actions of officers supervising the men, again even if not on active duty (Ministry of Defence v Radclyffe (supra)).

[ 32 ] But there is a crucial distinction between these cases and the situation where the employee is not doing something connected with his duties but is engaged on a "frolic" of his own, in the sense of acting purely on a private venture unconnected with his work. A barmaid, charged simply with serving customers, who assaults a customer with a glass, does not bring home liability to her employer (Deatons Pty v Flew (1949) 79 CLR 370, quoted in Lister v Hesley Hall (supra)). As the Lord Ordinary (Reed) said in Ward v Scotrail Railways 1999 SC 255 there can be no vicarious liability based upon a co-employee's sexual harassment where that involved "an unrelated and independent venture of his own: a personal matter, rather than a matter connected to his authorised duties" (at 264; cf claims under the Protection from Harassment Act 1997 s 10, referred to in Majrowski v Guy's and St Thomas's NHS Trust (supra), Lord Nicholls of Birkenhead at para 40, Lord Hope at para 58). Gibson v British Rail Maintenance 1995 SC 7 is an illustration of a pursuer correctly abandoning a case of vicarious liability based upon the consequences of a prank carried out by co-employees (see Lord President (Hope) at 9).

[ 33 ] The cases are all consistent with the dictum of McLachlin J in Bazley v Currie (supra at para 42) that:

"...an incidental or random attack by an employee that merely happens to take place on the employer's premises during working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do...".

That is the position here. It is clear from the pursuer's averments that Mr Reid's actions in pulling her pony tail were unconnected with his employment. The defenders' business was frozen food storage. Mr Reid was employed as part of that business, albeit that he had an incidentala supervisory role over certain staff and duties in relation to health and safety. It was not part of the defenders' business, or Mr Reid's employment, to care for, look after or protect the pursuer in the manner which ultimately rendered the defendants in Lister v Hesley Hall (supra) vicariously liable. Equally, in pulling the pursuer's ponytail, Mr Reid was not purporting to do anything connected with his duties relating to health and safety in the Portacabin or in relation to his supervision of the staff.

[ 34] Were all the pursuer's averments to be proved, what would remain would be a "frolic" of Mr Reid unconnected with his work, other than that it was committed in the defenders' premises and during the hours of work. As Lord Clyde said in Lister (supra), that is not enough to bring home vicarious liability. Using Lord Reed's words in Ward (supra), Mr Reid's behaviour was "an unrelated and independent venture of his own: a personal matter, rather than a matter connected to his authorised duties". In these circumstances, whether the case is determined by applying the general test of close connection and what is fair and just or the more specific criterion of whether what Mr Reid did was within the scope of his employment, the pursuer's case is bound to fail. The Court will should accordingly refuse the appeal and adhere toaffirm the interlocutor of the Sheriff dated 11 December 2008.