A Mr Romasov was killed by a fellow employee in a Sainsbury’s supermarket; this fellow employee had, two days earlier, told Mr Romasov that he did not like immigrants and that he should go back to his own country. There was an argument when the co-employee objected to Mr Romasov sharing his table and a further argument in the toilets. Later the co-employee picked up a kitchen knife from the kitchenware section of the supermarket and stabbed Mr Romasov in one of the aisles.
Held: The action failed. Mo matter how broadly the context of the stabber’s employment was looked at, it was not possible to hold that Sainsbury’s retail business in general or their engagement of persons to stack shelves in supermarkets in particular carried any special or additional risk that persons such as the deceased would either be harassed or otherwise come to harm as a result of deliberate violence from fellow employees.
Lord Carloway referred to his previous judgment in Wilson v Exel saying: ‘the decision in Wilson (supra) is not to be interpreted so narrowly as to be applicable only to conduct in the nature of ‘pranks. The use of the expression ‘frolic’ in that case. . is, as already noted, not indicative of triviality with respect to the wrongful acts in question. The principles set out in that case may be taken to be of general application in cases of intentional wrongdoing. Whilst the pursuers have sought to distance themselves from the ‘random attack’ by characterising the deceased’s murder as part of a course of conduct amounting to harassment, there is no basis for departing from the court’s analysis of the law in Wilson (supra). Referring as a whole to Mr McCulloch’s conduct from 13 to 15 April, being the period over which the harassment is alleged to have occurred, does not remedy the fact that there is no connection between the harassment and what McCulloch was employed to do. Rather, McCulloch’s employment simply provided him with the opportunity to carry out his own personal campaign of harassment with tragic consequences.’
Lord Carloway, Lord Brodie, Lord McGhie
[2013] ScotCS CSIH – 67, [2012] CSIH 67, 2013 SC 178, 2013 GWD 25-512, 2013 Rep LR 106, 2013 SLT 1032, [2013] RA 67, [2013] IRLR 792, 2012 GWD 30-624, 2014 SC 147
Bailii
Scotland
Citing:
Cited – Wilson v Exel UK Ltd SCS 29-Apr-2010
A supervisor in a depot was entrusted to implement the employers’ health and safety policies. In a prank, he forcefully pulled an employee’s head back by her hair.
Held: The pursuer’s appeal against rejection of the claim based upon vicarious . .
Cited by:
Cited – Graham v Commercial Bodyworks Ltd CA 5-Feb-2015
The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .
Cited – Mohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
Lists of cited by and citing cases may be incomplete.
Vicarious Liability
Updated: 11 November 2021; Ref: scu.513808
