CHRISTOPHER SOMERVILLE AGAINST HARSCO INFRASTRUCTURE LIMITED

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NOTE:

1.         The pursuer appeals the sheriff's decision on the central issue at proof – whether the defenders were vicariously liable for the actings of their employee Stanley Smith?

2.         It is not disputed that the pursuer, Christopher Somerville sustained injuries as a result of an accident on 10 June 2013 in the course of his employment with the defenders, a scaffolding firm, now called S.G.B.  Quantum is agreed.  The pursuer had worked with the defenders for some years as a yard operative at their premises in Edinburgh.  He was checking scaffolding boards and recording the results in a notebook.  He was specifically required to record from which site the boards had been returned to the yard.  He was wearing the requisite protective clothing, boots and head gear.  Nothing turns on what the pursuer was doing save to acknowledge that he was going about his duties in the yard as instructed by his foreman, Mr Nelson.

3.         Mr Bazela, a forklift truck driver with the defenders, was also working checking scaffolding boards in the same area of the yard some 13ft to the pursuer's left.

4.         Mr Smith was employed by the defenders as Yard and Transport Manager.  As the sheriff records in Finding in Fact [3] he "was employed by the defenders as Yard and Transport Manager.  His responsibilities were to oversee the yard and stock and to manage transport.  Mr Smith reported to the Branch Manager.  The defenders employed about 50 people in the Edinburgh premises.  William Nelson was employed by the defenders as Yard Foreman.  He reported to Mr Smith".

5.         The incident giving rise to the pursuer's injuries is set out in findings in fact [6] – [9].

"[6]   Mr Smith came out of his office into the yard.  He engaged in a good humoured exchange with Mr Bazela about going to a nearby shop for rolls for the morning break.  Mr Smith and Mr Bazela joked with each other without malice.  The pursuer heard the exchange but was not involved in it.  He continued with his work.

 

[7]     As Mr Smith walked away towards Mr Nelson's cabin Mr Bazela shouted something in continuation of the light-hearted exchange.  Mr Smith responded saying words to the effect 'I will teach you to speak to your manager like that'.  He picked up a claw hammer which was lying in the cabin and threw it towards Mr Bazela.  The hammer belonged to the defenders and was used by their employees in the yard.

 

[8]     The hammer travelled about 30 feet or so and struck the pursuer on the head whereby he was injured.  He fell to the ground and required assistance.  He attended the Edinburgh Royal Infirmary and received treatment.  He experienced dizziness, nausea and headache.  He was absent from work for about three days.  He required services from his mother and wife.  The value of his loss injury and damage was agreed in the sum of £1,200 inclusive of interest.

 

[9]     Mr Smith did not intend to throw the hammer at the pursuer.  He did not intend to attract the pursuer's attention.  He was not communicating with the pursuer.  The hammer was thrown as part of the good humoured exchange between Mr Smith and Mr Bazela."

 

            For the sake of completeness it is recorded by the sheriff at finding in fact [10] that following the incident Mr Smith admitted fault to his employers and was dismissed for an act of gross misconduct.  The pursuer and Mr Smith were and continue to be good friends.

6.         It appears to be accepted that the good humoured exchange occurred at approximately 9.30am when the morning break was fast approaching and there was interest amongst some employees as to who would fetch the rolls from the nearby shop.

7.         The facts of the case as found by Sheriff Mackie are not in dispute.  They are uncontroversial save a dispute as to Mr Smith's evidence as set out in para [2] of the sheriff's note.

8.         The disputed issue for the sheriff – whether the defenders are vicariously liable for Mr Smith's actings – remains the sole question of law on appeal.  The question of law posed for my opinion is – "Did I err in deciding that the defenders were not vicariously liable for the act of their employee Stanley Smith?"

 

Appellant's submissions

9.         Mr Laing, for the pursuer and appellant helpfully provided written outline submissions.  He sought to persuade me on the facts held by the sheriff to be admitted or proved that she had indeed made an error in law as to the central issue of vicarious liability and therefore the question of law should be answered in the affirmative; the appeal allowed and the sheriff's interlocutor of 5 December 2014 recalled.  Thereafter, decree should be pronounced in favour of the pursuer in the sum of £1,200 including interest (being the agreed damages).  I was asked to reserve all questions of expenses.

10.       Essentially, the pursuer's position is that the sheriff gave insufficient weight to the entire incident and especially to the words which passed between Stanley Smith and Robert Bazela as recorded in finding in fact [7].  These words are to the effect "I will teach you to speak to your manager like that".  The sheriff erred by failing to take into account Mr Smith's use of these words which, according to Mr Laing, were designed to demonstrate his superior position with the defenders and underlines that this incident occurred squarely in the course of employment.

11.       Mr Laing made comparison with the case of an employee in a dominant or supervisory role harassing a worker of a lower grade.  I was referred to the case of Bazely v Currie a decision of the Canadian Court of Appeal in 1999 which considered whether a non-profit making foundation was vicariously liable for the actings of a paedophile employee who had sexually abused children in a residential care facility.  The decision of McLachlin J sets out the principles which ought to be taken into account when considering the question of whether liability should lie with the employer.  Paragraph 41 sets out the principles which should guide the court in determining whether an employee is vicariously liable.  These principles include consideration of the extent to which power is conferred on one employee in relation to the victim.  In this case Mr Smith was in a dominant position and the verbal exchange noted by the sheriff reinforces this.  In support of this proposition I was referred to Vaickuviene and Ors v Sainsburys PLC [2013] CSIH 67 and Wallbank v Wallbank Fox Designs Limited 2012 EWCA Civ 25.  Vaickuviene involved an action for damages by relatives of an employee of the defenders who was murdered by a fellow employee in their Aberdeen store.  In Wallbank the employers were found liable for the actings of an employee who struck the Managing Director - an example of an over robust reaction to a lawful instruction.  Mr Laing acknowledged that it was insufficient that the pursuer and the wrong doer were brought together by virtue of their employment in both time and place.  More is required to hold the employer vicariously liable.  It is necessary that there be some connection between Mr Smith's employment duties and the act of throwing the hammer.

12.       Mr Laing submitted that this case did not fall into the category of a frolic or horseplay as in Wilson v Exel UK Limited trading as "Exel" [2010] CSIH 35.  Rather it was important to emphasise that Smith was the senior employee and was asserting his dominant role.  His managerial role required him to manage and oversee the defenders' employees in the yard and part of his duties involved communication with these employees and in particular the issuing of instructions.  Accordingly, had the sheriff properly considered the context of the act complained of; Mr Smith's managerial and supervisory position; and the significance of the incident taking place in the yard whilst employees are carrying out tasks in the course of their employment she ought to have found this to be of importance as this provides time, place, opportunity and connection with the employers' enterprise.  The sheriff ought to have considered the extent to which the wrongful act may have furthered the employers' aims.  Again, Mr Laing stressed the significance of the management hierarchy of supervisors; managers and employees, - as was evident from the findings in fact.  Mr Smith's use of the words "your manager" is inconsistent with this being a personal frolic and was more in keeping with the wrongful act being inherently part of the employers' enterprise with all the consequences and friction that goes with the supervisory role.  Had the sheriff addressed herself properly as to the facts it was argued that Mr Smith's actings were so closely connected with his employment and, in particular, his position as a supervisor that it would be fair and just to find the defenders vicariously liable.

 

Respondents' submissions

13.       Mr Brownlee for the defenders also referred to and reviewed the authorities in the joint bundle.  He provided a detailed note of argument.

14.       He argued that the sheriff's findings in fact do not support the submissions made on behalf of the appellant.  This was a relatively straightforward matter.  Mr Smith threw the hammer as part of a light-hearted exchange (see finding in fact [9]).  This was not a situation where Mr Smith was truly exercising his managerial function or asserting his superior standing.  The words were light-hearted banter and that is how the sheriff found them.  They must be looked at in the context of the surrounding facts.

15.       The circumstances point to Mr Smith's behaviour being a frolic of a personal nature or horseplay.  The circumstances of the present case are close to the circumstances in Wilson v Exel.  The sheriff is correct to take the view that the circumstances of the present case are not distinguishable from the circumstances in Wilson.

16.       There was no true connection between the wrongful act and Mr Smith's employment.  There was certainly no close connection of the sort required in Lister and Others v Hesley Hall Limited [2001] UK HL 22.  Before the employer can be vicariously liable the wrongful act "must be committed in the course of that business so as to form a part of it and not merely coincident in time with it" (Lord Reed in Ward v Scotrail Railways Limited 1999 SC 255).  Mr Smith's throwing of the hammer in the context of light-hearted banter about who would go for the morning rolls had nothing to do with the employers' business other than taking place on the defenders' premises during the working day.  This is not sufficient to bring the wrongful act to the door of the employer (Bazley v Currie;  Ward v Scotrail Railways Ltd; Lister & Others v Hesley Hall).  Leaving aside the question of whether there was a close connection with the employment it would have to be "fair and just" to find the employer liable.  The sheriff's findings in fact make it clear that Mr Smith was engaged in some personal act or frolic.  When throwing the hammer he was not acting as a manager vis a vis the pursuer he was indulging in horseplay which was not part of his duties.  In these circumstances it could hardly be fair and just to hold his employers responsible.  Mr Brownlee indicated that careful consideration of the Sainsburys case supported his submissions.  The case of Wallbank v Wallbank Fox Designs Ltd (supra) could be readily distinguished.  This was not a reaction to a lawful instruction.  There was no question of any friction amongst the employees concerned instead as is clear from the sheriff's findings this was a light-hearted and good humoured exchange.  I was also referred to a recent English case of Graham v Commercial Bodyworks Limited [2015] EWCA Civ 47 reported since the sheriff's decision in this case.  In that case, two employees working in a car body repair shop required to use highly inflammable thinning agent called "Gunwash".  Mr Graham and a fellow employee Mr Wilkinson were friends and co-employees of longstanding.  Mr Wilkinson deliberately lit a cigarette lighter in the vicinity of Mr Graham whose overalls had been sprinkled with this highly inflammable agent.  Mr Graham sustained serious burning injuries.  Although the incident was described as "horseplay" the first instance judge considered it better described as a serious assault and that Mr Wilkinson's actions had been deliberate and clearly reckless as regards the risks.  Having reviewed Bazley v Currie Longmore LJ at paragraph 14 states:

"Although this was, no doubt, said with sex abuse cases primarily in mind, it is a useful general statement of the position and justifies an enquiry into the question of whether there is a close connection between the creation or enhancement of a risk and the wrong that accrues therefrom.  On the facts of this case I would, by reference merely to the passage quoted above, conclude that although the defendant employers did create a risk by requiring their employees to work with thinning agents, it is difficult to say that the creation of that risk was sufficiently closely connected with Mr Wilkinson's highly reckless act of splashing the thinner onto Mr Graham's overalls and then using a cigarette lighter in his vicinity.  It is only the first of McLachlin J's five factors that is present in this case.  The other factors tell against the imposition of liability.  The wrongful act did not further the employer’s aims; there was no friction or confrontation inherent in the employers' enterprise and such intimacy there was likewise had no connection with that enterprise; it is inappropriate to talk either of power conferred on Mr Wilkinson in relation to Mr Graham or any particular vulnerability of Mr Graham to the wrongful exercise of such power".

 

17.       Mr Smith's actings can be categorised as an independent venture or prank of his own quite unrelated to his employment.  Accordingly, there was no error in the sheriff's conclusion that the defenders are not vicariously liable for the act of Mr Smith their employee.  The appeal should be refused, reserving any question of expenses.

 

Discussion

18.       Vicarious liability of an employer for the actings of an employee is well established and the common law doctrine and principles are summarised in Salmond on the Law of Torts (1^st Ed 1907 – now Salmond and Heuston 21^st Ed).  It is accepted that Salmond gives the classic formulation of the doctrine when he states on page 83:-

"1. A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment.  It is deemed to be done in the course of the employment, if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.  It is clear that the master is responsible for acts actually authorised by him:  for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all.  But a master, as opposed to the employer of an independent contractor, is liable even 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 – although improper modes – of doing them."

 

19.       The Salmond formulation has been considered, developed and applied in cases decided in Scotland, England and in Canada to which I was referred.  These cases are:

Ward v Scotrail Railways Limited 1999 SC 255;

Wilson v Exel UK Limited t/a Exel [2010] CSIH 35;

Vaickuviene v Sainsburys PLC [2013] CSIH 67

England and Wales:

Lister and Others v Hesley Hall Limited [2001] UK HL 22;

Weddell v Barchester Health Care Limited;

Wallbank v Wallbank Fox Designs Limited 2012 EWCA Civ 25;

Graham v Commercial Bodyworks Limited [2015] EWCA Civ 47;

Appeal Court of Canada:

Bazley v Currie [1999] 2SCR 534.

 

20.       The legal test as expressed in Salmond has been adopted in Scotland.  In particular, Lord Reed in Ward v Scotrail (supra) considered the common law doctrine of vicarious liability.  That case involved harassment of a female ticket inspector by another employee of the defenders.  Lord Reed referred to another passage in Salmond and Heuston on Torts (21^st Ed) at page 444 where the authors state:

'a master is not responsible for the negligence or rather wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business, or because it is committed whilst using the tools or equipment provided by the master.  It must be committed in the course of that business so as to form a part of it and not be merely coincident in time with it.'

 

and he continued, dealing with the facts of the case in question, at page 11

"whether Mr Kelly's conduct be regarded as deliberate persecution or as an innocent but upsetting campaign of courtship, on either view it was not committed in the course of his employer's business so as to form part of it.  He must in my opinion be regarded as indulging in an unrelated and independent venture of his own: a personal matter, rather than a matter connected to his authorised duties."

 

21.       The authorities to which I was referred consider the second of Salmond's categories namely, (b) a wrongful and unauthorised mode of doing some act authorised by the master.  The House of Lords considered this category in the case of Lister v Hesley Hall Limited (supra) a case in which the question of whether as a matter of legal principle the employers of the warden of a school boarding house who sexually abused boys in his care may, depending on the particular circumstances, be vicariously liable for the torts of their employee?  In that case the House of Lords was concerned to revisit the case of T v North Yorkshire County Council [1999] LGR 584 which had adopted a narrow approach to that test.  The House of Lords in Lister also had the benefit of Canadian jurisprudence in particular the case of Bazley v Currie to which I was referred.  In Lister Lord Steyn developed the Salmond formulation by posing the question: "whether the warden's torts were so closely connected with the employment that it would be fair and just to hold the employers vicariously liable"?  Lord Clyde similarly emphasised the broader approach which should be adopted observing that whilst consideration of the time at which and the place at which the actings occurred will always be relevant they may not be conclusive.  This, of course, echoes the passage from Salmond and Heuston referred to by Lord Reed in Ward.  Following Lister "fair and just" has entered the lexicon of vicarious liability.

22.       The Scottish Courts have adopted this formulation.  The dicta of the Lord Justice Clerk in Wilson v Exel UK and Vaickuviene are instructive.  In Vaickuviene at paragraph 25 Lord Carloway observes:-

"The present case ought to be approached in a similar manner as the court viewed the facts averred in Wilson v Exel UK (supra at para [25]) by noticing that the general question of whether vicarious liability attaches ultimately depends on whether the wrong doing employee's actings were so closely connected with his employment that it would be 'fair and just' to find the employer liable (Lister (supra) Lord Steyn at paragraph 28). From a practical point of view, it will not be necessary for the court to address that question in the vast majority of cases.  It will almost always, (if not always)be presumed to be fair and just to impose liability if the employee’s actings are within the scope of, or in the course of, his employment.  It is thus neither necessary nor desirable to consider what is fair and just in every such circumstance."

 

In both cases the Lord Justice Clerk properly distinguishes on the one hand the situations where an employee in using violence or overstepping the mark is engaged upon something connected with his employer's business where the employer may be vicariously liable.  Examples of these cases are usually but not exclusively in the area of public liability where, for example, a steward or bouncer is over zealous in their dealings with patrons or public.  Other cases have involved police authorities and the armed services.

23.       On the other hand these cases are quite different from the situation where an employee is engaged in horseplay or banter or a frolic of his own in the sense of indulging in a purely personal matter or campaign such as Mr Kelly's conduct in Ward v Scotrail; the supervisor's prank in Wilson v Exel and Mr Wilkinson's frolicsome but quite reckless conduct in Graham v Commercial Bodyworks Limited.  In all of these cases the court considered the behaviour did not have the characteristics of the requisite close connection with the employer's enterprise.  Wilson v Exel is of significance.  The Inner House held that the supervisor's actions were not connected with his employment and were a "frolic" for which the employer was not vicariously liable.  I will return to Wilson later.

24.       The authorities from Lister onwards have considered the Canadian case of Bazley v Currie (supra).  That decision of the Canadian Appeal Court concerned vicarious liability for acts of sexual abuse carried out by an employee of a children's foundation.  I was referred to that case and the policy considerations set down by McLachlin J.  In Bazley the court sets out certain principles designed to reach a fair and just outcome when determining whether an employer should be vicariously liable for an employee's unauthorised intentional wrong.

25.       The first principle is of "openly" confronting the question of whether liability should lie with the employer.  This, in effect, restates the Salmond formulation of a broad practical approach which is adopted by Lord Clyde in Lister.

26.       Secondly, vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom even if unrelated to the employers' desires.  This principle is designed to provide a fair and just remedy where there is such significant connection.  McLachlin J states:

"Incidental connections to the employment enterprise, like time and place (without more), will not suffice.  Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable cost of that business.  In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer."

 

27.       The court in Bazley then lists five subsidiary factors which may assist in determining the sufficiency of the connection referred to above.  The list is not exhaustive.

(a)  The opportunity that the enterprise afforded the employee to abuse his or her power;

 

(b) The extent to which the wrongful act may have furthered the employers’ aims (and hence more likely to have been committed by the employee);

 

(c)  The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employers' enterprise;

 

(d) The extent of power conferred on the employee in relation to the victim;

 

(e)  The vulnerability of potential victims to wrongful exercise of the employee's power.

 

28.       The appellant argued that by applying these principles to the facts as found by the sheriff the act was so closely connected with his employment that it was fair and just to find the defenders vicariously liable.  The context of Mr Smith's wrong doing is circumscribed by the facts of the case.  It is well settled that to find that the employee's actings form part of the course of the employers' business it is not enough that the act occurred during working hours whilst using the tools provided by the employers.  The appellant seeks to pray in aid the factors mentioned in Bazley above.  The appellant's argument rests significantly on the use of the words "your manager" and the hierarchy of management and supervision within the yard.  However, that argument is undermined by the sheriff's findings in fact in particular Findings in Fact 6, 7 and 9.  Standing these findings in fact I am unable to accept the argument that anything turns on the words "your manager" other than a degree of irony.  Mr Smith's actings did not further the employers’ aims.  There was no friction or confrontation nor abuse of power nor particular vulnerability on the part of the appellant.  It strains common sense and language to interpret the words and behaviour of Mr Smith as having much, if anything, to do with his duties as supervisor.  He was simply engaging in light hearted banter about the rolls.  In any event he was not speaking to the pursuer at all (See Finding in Fact 9).

29.       I was referred to Wallbank v Wallbank Fox Designs Limited.  In that case Mr Wallbank who was the Managing Director of a small enterprise issued an instruction to the wrong doer who lost his temper and reacted violently.  This violent reaction to a lawful instruction by a superior employee was found to be so closely connected with what was expected of the employee that it was in the course of employment and it was fair and just to hold the employer vicariously liability for the attack on Mr Wallbank.  This is an example of facts and circumstances leading to the conclusion where there was a close connection with the employment.  The facts in Wallbank are markedly distinct from this case which has nothing whatsoever to do with instructions lawful or otherwise passing between Mr Smith and the appellant or Mr Bazela.

30.       In my view the sheriff is correct to regard the circumstances of this case as similar to those in Wilson.  The facts of this case are consistent with this being an assault on a fellow employee in the course of a prank (as in Wilson and Graham v Commercial Bodyworks Limited (supra)).  It is likewise consistent with Lord Reed's reasoning in Ward v Scotrail Railways and the dictum of McLachlin J in Bazley v Currie (at paragraph 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."

 

            It cannot be said that Mr Smith's reckless act occurred in the course of his employment.  This appeal falls to be refused.