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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wilson v. EXEL UK Ltd [2010] ScotCS CSIH_35 (29 April 2010) URL: http://www.bailii.org/scot/cases/ScotCS/2010/2010CSIH35.html Cite as: 2010 GWD 18-365, 2010 Rep LR 68, 2010 SLT 671, [2010] ScotCS CSIH_35, [2010] CSIH 35, 2010 SCLR 486 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord PresidentLord ReedLord Carloway
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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, 1st 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, 21st 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 (1st 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. (4th) 45 and Jacobi v Griffiths 174 D.L.R. (4th)
71 will require to be considered. Such consideration is not required in this
case.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord PresidentLord ReedLord Carloway
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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.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord PresidentLord ReedLord Carloway
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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 (4th) 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 1st ed.
pp 83-84; Salmond and Heuston on Torts (21st 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.