[2012] CSOH 69



in the cause







Pursuers: Campbell, Q.C; McNaughton; Digby Brown LLP

Defenders: Young, Q.C, et Cowan Sol Advocate; Simpson & Marwick

26 April 2012

[1] This is a personal injuries action which was appointed to the procedure roll. The defenders are not sued in respect of any direct negligence or breach of statutory duty by them. The action is pled and founded solely on the alleged vicarious liability of the defenders for a former employee, Robert McCulloch, (hereinafter referred to as "McCulloch").

[2] The defenders sought dismissal of the action on the basis that the pursuers have not made relevant averments about the basis upon which the defenders are vicariously liable for the actings of McCulloch which would require averments that there was a "close connection" between the actings of McCulloch and his duties of employment.

The Pursuers' averments on Record
[3] The pursuers are members of the family of Roman Romasov. On 15 April 2009, McCulloch attacked Roman Romasov (hereinafter referred to as "the deceased") at their place of work in the defenders' supermarket at Berryden Road, Aberdeen. The deceased sustained multiple stab wounds and died. Thereafter, McCulloch pled guilty to the murder of the deceased and was sentenced to life imprisonment. The defenders were the employers of both the deceased and McCulloch.

[4] It is against that undisputed factual background that the case is pled on behalf of the pursuers.

[5] The critical averments for the pursuers are contained in Article 4 of Condescendence which states:

"The deceased commenced employment with the defender in 2008 as a shelf stacker at the defender's supermarket at Berryden Road, Aberdeen. There were several night shift workers with whom the deceased regularly worked, including Robert McCulloch (hereinafter "McCulloch"). McCulloch was a member of the British National Party. He was known to hold extreme and racist views about Easter European workers coming to the UK. He had frequently made racist comments in the past, and was aggressive and argumentative. There had been bad blood between McCulloch and, inter alios, the deceased for some time. In the days prior to the death of the deceased, numerous members of staff were discussing a threat that they had heard from McCulloch to the effect that he (McCulloch) was going to kill the deceased. There was an incident between McCulloch and the deceased on 13 April 2009 when McCulloch abused the deceased racially. He had told him that he did not like immigrants, and that he should go back to his own country. He was insulting and aggressive. The deceased was distressed thereby, and on the same night he wrote a letter to his line manager complaining that McCulloch had made racist comments towards him. He handed his letter to his team leader, Paul Davies, who subsequently showed it to the nightshift manager, Trevor Bowden. A copy of the letter is produced and its terms held incorporated herein brevitatis causa. The making of racist comments, with or without the aggression manifested by McCulloch, was a disciplinary offence in terms of the defenders' policies, and would have resulted in disciplinary action, including the risk of dismissal. McCulloch was aware of the fact that the deceased had complained about him, and of the potential repercussions. By the time of the death of the deceased, no action had been taken by Bowden who professed later to have been too busy. There had been no action in the intervening days to dismiss McCulloch, or to suspend him, or to warn him formally as to his conduct, or to ensure that the two men were not on shift together; but McCulloch was aware that it was only a matter of a short time before disciplinary action was taken against him. On 15 April 2009 McCulloch and the two men were on shift together. During the shift break shortly after 1am, there was an argument between them, McCulloch having taken aggressive exception to the deceased being at the same staff table as he was. Shortly thereafter, there was a further argument between them, involving aggression including punches being thrown, in the staff toilets. At about 3am, McCulloch was noted by numerous members of staff to be behaving strangely, pacing up and down and talking to himself. At about 3.15am, he removed a kitchen knife from the kitchenware section in the store and attacked the deceased in one of the supermarket aisles. ..."

[6] It is averred that the conduct of McCulloch towards the deceased amounted to harassment in terms of Section 8 of the Protection from Harassment Act 1997. It is further averred that repeatedly stabbing a man to death, is properly to be regarded as one of the ultimate forms of harassment.

[7] The said copy letter dated 13 April 2009, referred to in the pleadings, is 6/3 of process. I have had regard to that letter as part of the pleadings. That letter is capable of being construed as a complaint by the deceased to the defenders about harassment by McCulloch asking them to apply their equal opportunities policies and "punish" McCulloch.

Submissions on behalf of the Defenders
[8] In oral submission, senior counsel for the defenders restricted his submissions to paragraph 1 of the note of arguments for the defenders. In summary, he submitted that for the defenders to be vicariously liable, the pursuers would require to prove that there was a close connection between the wrongful actings of McCulloch and his duties as an employee. The submissions fell into four chapters.

[9] The first chapter dealt with the pursuers' pleadings. Senior counsel drew attention to the averment by the pursuers that the delictual wrong was pled in terms of Section 8 of the Protection from Harassment Act 1997 based on the factual averments set out in Article 4 of Condescendence.

[10] In the second part of his submissions, senior counsel focused on Wilson v Exel UK Ltd T/A Exel 2010 SLT 671. He submitted that this was a critical case for the defenders. He founded in particular on paragraphs 31-33 thereof. In deciding that case, the First Division applied Lister v Hesley Hall Ltd (2001) UKHL 22. In his detailed analysis of Wilson (supra), senior counsel drew attention to the factual background. A supervisor assaulted a fellow employee but at the time of the assault the supervisor was not carrying out any supervisory duty. The employees were both involved in the frozen food storage business. Such work was clearly distinguishable from the class of cases where employees may become involved in aggressive behaviour in the course of their duties. Senior counsel submitted that the court were satisfied that the averments in Wilson indicated that the employee who carried out the assault was not purporting to do anything connected with his duties but was involved in an unrelated and independent venture of his own which involved a personal matter and not a matter connected to his authorised duties. He submitted that was very similar to the present case. The averments in the present case do not set out facts and circumstances from which can be inferred the necessary and critical connection between the duties of the job of McCulloch and the murderous act which he committed.

[11] In support of his third chapter of submissions, senior counsel conceded that in principle there can be vicarious liability for harassment, including harassment under the 1997 Act. That did not however relieve the pursuers from setting out relevant averments to found the necessary connection between the duties of the employment and the murderous act. He referred to Ward v Scotrail Railways Ltd 1999 SC 255, page 263. Senior counsel submitted that in the present case there were some averments that the defenders, as employers, were aware of the harassment by McCulloch of the deceased. Such averments would be relevant in a case founded on the direct fault and negligence of the employers but the averments do not provide a basis for the connection essential to vicarious liability.

[12] In his fourth chapter of submissions, senior counsel made reference to Lister (supra) Lord Clyde at paragraph 50; EB v Order of the Oblates of Mary Immaculate 2005 SCC 60; Bernard v Attorney General of Jamaica (2005) IRLR 398 and Attorney General of British Virgin Islands v Hartwell (2004) 1 WLR 1273. He submitted that these cases were illustrative of how the general rule was applied in relation to cases of sexual assault. In such cases an important factor was whether or not the employee had been given some special role or duty of care in relation to the victim. There were no such averments in the present case.

Submissions on behalf of the Pursuers
[13] Senior counsel founded on the averments in Article 4 of Condescendence, including the incorporated averments relating to the letter, 6/3 of process which was written by the deceased. He drew attention in particular to the averments at page 6A to the effect that the making of racist comments, with or without aggression, was a disciplinary offence in terms of the defenders' policies and would have resulted in disciplinary action including the risk of dismissal. It is averred that McCulloch was aware of the fact that the deceased had complained about him and of the potential repercussions.

[14] Senior counsel said that the most relevant and persuasive case was a case which dealt with harassment, namely Majrowski v Guy's & St Thomas's NHS Trust (2007) 1AC 224. This case was supportive of the pursuers' claim. He submitted that it was not possible for the defenders to distinguish this case in relation to the critical issues. He referred in particular to paragraphs 27-30.

[15] Senior counsel also prayed in aid Walbank v Walbank Fox Designs Ltd (2012) EWCA Civ 25, in particular paragraphs 47-52. The claimant worked at "a reasonably relaxed and informal workplace". He was not employed in a situation in which force or confrontation was inherent in the nature of the business or in circumstances where there was such a risk reasonably incidental to the type of business being carried on. That case illustrated that vicarious liability may arise in a situation where an employee responds to an instruction properly given to him by a more senior employee with irrational and unjustified force amounting to an assault. There was a recognition that in an employment situation, there was a need as between employees to give and receive instructions and that may have an additional significance in claims by employees. There was also recognition (paragraph 52) that the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct is not closed.

[16] Reference was also made by senior counsel to Gravil v Carroll and Another (2008) ICR 1222. Sir Anthony Clarke MR at paragraph 21 stated:

"As we see it, the authorities show that the essential question is that posed in Lister's case [2001] ICR 665 and adopted in Mattis v Pollock [2003] ICR 1335, namely whether the tort is so closely connected with the employment, that is with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible. In answering that question the court must take account of all the circumstances of the case, as Lord Steyn put it, looking at the matter in the round. The authorities show that it will ordinarily be fair and just to hold the employer liable where the wrongful conduct may fairly and properly be regarded as done while acting in the ordinary course of the employee's employment (per Lord Nicholls). This is because an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business being carried on (per Lord Steyn)."

The factual background to the case of Gravil (supra) was that the first defendant was employed by the club to play rugby and at the time of his assault on the plaintiff, there was a melée of the kind which frequently occurred during rugby matches. The punch constituted a breach of an express term of the first defendant's contract of employment. It was considered by the court that there was clearly a very close connection between the punch and his employment and further that the desirability of an adequate and just remedy for the claimant and deterrence to bring home the need to prevent or minimise the risk of foul play which might cause injury made it fair and just to hold the club vicariously liable.

[17] Senior counsel submitted that in the circumstance of the present case, everything about the harassment and the murderous assault, including taking a weapon from the place of work, was connected with the employment situation. A broad view must be taken. I was referred to Alberto Filipe Cercato-Gouveia v Ermis Kyprianou, The Heybridge Hotel Ltd (2001) EWCA Civ 1887. This case involved a dispute between a restaurant manager and a waiter in which the restaurant manager kicked the waiter on the thigh and then punched him and threatened him with a knife. The waiter was injured. The judge at first instance concluded that it was impossible to say that the restaurant manager was acting in the course of his employment. The assault was "simply a piece of personal violence and viciousness". In considering the appeal, Lord Justice Dyson stated at paragraph 17 that a broad approach has to be adopted in considering the scope of the employment and that it is inappropriate to concentrate too closely upon the particular act complained of. He accepted in paragraph 19 that it was the duty of the restaurant manager to manage the staff and that included maintaining order and discipline where necessary. He noted that the assault was committed during working hours and during an episode in which the restaurant manager had purported to dismiss the claimant. He concluded that the assault by the restaurant manager could at least arguably be described as incidental to what the assailant was employed to do.

[18] Reference was also made to Rodgers et al v Kemper Construction Company, a decision of the Court of Appeals in California, Fourth District, Division 2 August 12 1975. In that case it was stated that the policy of extending vicariously liability is grounded upon

"a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities ... One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity." "Forseeability" as a test for vicarious liability merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business". (paragraphs 3 and 4).

[19] In conclusion, senior counsel submitted that there were averments which, if proved, would entitle the court to conclude by recognised principles including the "close connection" test that there was vicarious liability in this case. The present case was particularly fact sensitive and without hearing the facts, the court was not in a position to conclude that the pursuer must necessarily fail in his action. In these circumstances, the proper disposal was a proof before answer.

The test for relevancy
[20] Parties conducted the debate before me without any explicit reference to the standard test for relevancy, as explained in Jamieson v Jamieson 1992 S.C.(H.L.) 44. I understood both counsel to accept that for the purposes of procedure roll discussion, the pursuers pleadings should be taken pro veritate and the defenders would only be entitled to succeed if the court was persuaded that on the averments set out by the pursuers, the pursers "must necessarily fail" in the action. That is the test which I have endeavoured to apply.

Vicarious Liability
[21] Vicarious liability has been defined as a principle of no fault strict liability. A blameless employer may be held liable for a wrong committed by his employee while "acting in the course of his employment". (Lord Nicholls of Birkenhead, Majrowski, paragraph 7). The cases cited to me made reference to the historical development in case law of vicarious liability as discussed by a variety of writers such as Atiyah, Vicarious Liability in the Law of Tort (1967), Fleming Law of Torts (1998) and the frequently quoted passage from Salmond, Law of Torts (supra paragraph 27).

[22] My general comment about the case law is that there appears to be an acknowledgement in some of the case law that the principles which have been developed are not entirely consistent, that the cases are very fact dependent, and that policy considerations have been and remain a major influence.

[23] A number of policy considerations have been put forward from time to time as justification for the development and extension of vicarious liability. It is recognised that vicarious liability is at odds with the general approach of the common law under which liability is imposed on the wrongdoer on the basis that it is the wrongdoer who is liable for his own acts. Nevertheless over many years the courts in accepting and applying vicarious liability have recognised that for a range of policy considerations, an employer may be held liable for delictual acts, intentional acts and criminal acts of an employee acting "within his employment" as that concept has been defined and analysed from time to time.

[24] The debate about the principles and policy underpinning vicarious liability is reflected in case law not only in Scotland but in other common law jurisdictions and there has been significant mutual influence as between Scots and English law. The development of vicarious liability has been policy driven, the categories in which the law will recognise vicarious liability are not closed and the lines which have been drawn in cases which are fact dependent are not always easy to interpret or reconcile. In my opinion the development of vicarious liability is an ongoing process which may take us rather far from some of the earlier cases as the law reflects changing ideas about responsibilities as between employer and employee and who should bear the burden.

Issues in the present case
[25] It should be noted that in the pursuers' pleadings, there is no specific averment that the harassment and murder by McCulloch of the deceased was in the course of his employment and no specific reference to the close connection test. The absence of such averments was not part of the argument developed on behalf of the defenders. I consider that it is correct to look at the factual averments which are averred and it was on these averments which senior counsel for the defender focused. The mere incorporation in the averments of a reference to the correct legal test would not be sufficient to save the averments if the case was otherwise irrelevant. I note that in Wilson the pursuer used the words "closely connected with his employment" in an effort to bring the case within the ambit of the legal test. That reference was not sufficient to make the case relevant (paragraph 18). Although it was not made an issue in the present case, I consider that in many cases it might be prudent as a matter of pleading to aver that the employee was acting in the course of his employment if that is critical to the case and there are averments to support that.

[26] In this case, senior counsel for the pursuers did not take the extreme position that it is sufficient to prove harassment by McCulloch of the deceased to aver a relevant case. He accepted that to succeed he must aver facts from which it can be inferred that the conduct of McCulloch in harassing the deceased was in the course of his employment as that concept has been developed in case law such as Lister and in subsequent cases to which I have referred. Counsel for both parties accepted that to succeed at proof the pursuers would require to prove that the "close connection" test was met. To succeed at procedure roll there requires to be some factual averments to found a factual basis from which the court may infer that the test has been met.

[27] Senior counsel for the defenders relied on Wilson (supra) to provide authoritative guidance to resolve the present case. In that case Lord President Hamilton stated:

"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...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" (paragraph 2).

The Lord President discussed the difficulties which have arisen in relation to the second branch of that test under reference to the discussion in Lister. He concluded that "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..." (paragraph 7). This analysis was referred to by counsel in the present case as the "close connection" test. The Lord President also cited the observations of Lord Steyn, in Bernard v The Attorney General of Jamaica (2004) UK PC 47 who commenting on Lister observed "the intense focus required on the closeness of the connection between the tort and individual tortfeaser's employment" (paragraph 9).

[28] Lord Carloway in Wilson stated:

"This is a straightforward situation 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." (paragraph 24)

He considered that the circumstances in Lister were radically different from the case with which he was concerned. He quoted with approval the test developed in Lister and stated:

"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... 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 the present case, of pranks between co‑employees, is well trodden" (paragraph 25).

Lord Carloway analysed Wilson as falling into the category of an employee who was engaged on a "frolic" of his own in the sense of acting purely on a private venture unconnected with his work. He considered that it was clear that the actions of the employee were unconnected with his employment. He considered Wilson to be an example of a "frolic" case. In conclusion he stated:

"... 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 pursuers case is bound to fail" (paragraph 34).

[29] In Wilson The First Division (with Lord Reed concurring with the Lord President and Lord Carloway), concluded that the pursuer's case on averment clearly failed the test of a close connection between the wrong and the employment. In these circumstances they stated that it was unnecessary to address the further question which it considered to be one of legal policy as to whether the act was so closely connected with the employment that it would be fair and just to hold the employers vicariously liable.

[30] I consider that the averments in the present case are clearly distinguishable from the averments of fact considered by the court in Wilson. The pursuers' case in the present action is founded on the defenders' vicarious liability for conduct by an employee which amounts to harassment in terms of the Protection from Harassment Act 1997. The pursuers' case is plainly influenced and based on Majrowski.

[31] The House of Lords in Majrowski held inter alia that the principle of vicarious liability applied where an employee, acting in the course of his employment, committed a breach of a statutory obligation sounding in damages; that by section 3 of the Protection from Harassment Act 1997, Parliament created a new civil wrong whereby a breach of section 1 gave rise to the ordinary remedies for civil wrongs, including damages; that Parliament had indicated by section 10(1) of the Act that in Scotland an employer could be vicariously liable for conduct by an employee, in the course of his employment, amounting to harassment within the meaning of the Act.

[32] It was not disputed by senior counsel for the defenders that as a result of the decision in Majrowski an employer might be vicariously liable for conduct by an employee in the course of his employment amounting to harassment within the meaning of the 1997 Act. There was therefore no challenge to that general principle. Senior counsel submitted however that the averments in the present case were not sufficient to found a case that the actions of McCulloch were sufficiently closely connected with his employment rather than independent acts for which he alone was responsible.

[33] Although the general principle was conceded, it is instructive in my opinion to consider in some detail the reasoning of their Lordships in Majrowski which led them to the conclusion that a breach of this new statutory obligation by an employee could involve the employer in vicarious liability. There was considerable dispute about policy issues and whether Parliament had intended in creating this new statutory form of harassment to place liability vicariously on an employer for an employee's harassment of some other person. After a wide ranging discussion in the Court of Appeal and in the House of Lords about the policy considerations, the clear answer was in the affirmative. That affirmative answer acknowledged that the type of conduct which might amount to harassment "usually comprises conduct of an intensely personal character between two individuals" (Majrowski paragraph 25).

[34] In Majrowski, the plaintiff claimed that he was being bullied and intimated in various ways by his departmental manager. He averred that this treatment was fuelled by homophobia. The factual background involved averments that it was the departmental manager in the course of his employment carrying out the harassment. The analysis of Lord Nicholls of Birkenhead at paragraph 28 makes it plain that he did not consider the management position a critical feature of the case. He stated:

"In principle, harassment arising from a dispute between two employees stands on the same footing. If, acting in the course of his employment, one employee assaults another, the employer is liable. Why should harassment be treated differently?"

He acknowledged the understandable concerns of employers in extending their liability to harassment cases. Nevertheless, he was not prepared to exclude liability and stated:

"It would mean that where serious harassment by an employee in the course of his employment had occurred, the victim - who may not be a fellow employee - would not have the right normally provided by the law to persons who suffer a wrong in that circumstance, namely, the right to have recourse to the wrongdoer's employer. The possibility of abuse is not a good reason for denying that right ..." (paragraph 30).

[35] In my opinion when one considers the general policy considerations which have been advanced to justify vicarious liability, including the discussion in Majrowski, it appears that there may be sound policy reasons for encouraging employers to minimise or prevent harassment behaviour by their employees to fellow employees in the workplace. It is the employer who brings employees together to work together. The type of behaviour which may result due to the day to day interaction of fellow employees working together may clearly and foreseeably result in harassment (in the statutory sense) of one employee by another as they carry out their work. It is the employer who is able and may be bound to develop codes of practice and discipline to regulate their employees' behaviour to each other at the place of work. I consider that the type of behaviour which might be encompassed in a harassment case may be very different from an isolated or unexpected outbreak of aggressive behaviour by one employee to another. I do not consider that the case law dealing with individual assaults with employees who have molested or assaulted third parties are determinative of the situation in the present case.

[36] I do not have any difficulty in accepting the decision in Majrowski that there are good policy reasons for extending the scope of vicarious liability to harassment cases which satisfy the general principles of vicarious liability. That includes satisfaction of the close connection test.

[37] Unfortunately I have some difficulty when I come to focus on the averments in the present case in deciding whether or not there are averments which are capable of bringing the pursuers' case within the close connection test. I note that Lord Nicholls of Birkenhead in Majrowski stated that: "In most cases courts should have little difficulty in applying the 'close connection' test". That may be so in most cases but it does not give any assistance in a case such as the present where I do have some difficulty. One reason for my difficulty is that the facts of this case have not yet been established as I am asked to carry out the exercise at procedure roll. Another reason is that the averments in this case are so unusual and there has been little development of case law in relation to harassment cases.

[38] The main purpose of averments in a case such as this is to give fair notice of the case and provide a foundation for evidence but I consider that much may depend on the facts proved and inferences from the facts.

[39] Let me then consider the averments in detail. It is plain from the averments of the pursuers that the harassment by McCulloch of the deceased took place over a lengthy period of time during which the deceased and McCulloch regularly worked together. The harassment is averred to be frequent starting with verbal harassment of various kinds in public to the knowledge of other employees, escalating to physical harassment including assault and death threats and ending in murder. It is averred that all this behaviour by McCulloch to the deceased took place during working hours at his place of work. I read the averments of the pursuers as indicating that the way in which McCulloch carried out his work on a day to day basis in his interactions with the deceased as a fellow employee was infected by the racist BNP views of McCulloch who did not wish to work with a fellow employee from Eastern Europe. Further in the knowledge that the deceased had invoked the disciplinary procedures of the defenders, McCulloch reacted to that with escalating violence resulting in aggression and assault, followed by murder. Looking at the matter broadly, I consider that the pursuers' averments go well beyond averments which merely state these events occurred between employees at their place of work during working hours. The averments in this case are, in my opinion, capable of being construed as entirely connected with McCulloch's work in the way he responded to the defenders' choice of fellow employee and in his reactions to the deceased's invocation of the employer's disciplinary process.

[40] I find it impossible to analyse these averments in the way suggested by senior counsel for the defenders. In my opinion the averments in the present case are very different from the averments in Wilson. I could not categorise the present case as an example of a straightforward situation in which one employee has assaulted a fellow employee in the course of a "prank" as Lord Carloway concluded had occurred in Wilson. The averments in the present case are in my opinion very different in nature.

[41] I consider that the averments in this case are unusual and extreme. There is no case law which has been put before me which would assist in relation to the particular facts. This is another distinction from Wilson, as in that case the court found no difficulty in analysing the facts based on well accepted case law.

[42] On the averments pled, I am certainly not persuaded that the pursuers must necessarily fail at proof. In these circumstances, I refuse the motion by the defenders to dismiss the action and grant a proof before answer to the pursuers. I reserve all issues in relation to expenses.