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 liability failed.
Lord Carloway said: ‘A broad approach should be adopted. Time and place were always relevant, but may not be conclusive and the fact that the employment provides the opportunity for the act to occur at a particular time and place is not necessarily enough.’ He went on to consider the English authorities including Majrowski v Guy’s and St Thomas’s NHS Trust [2005] QB 848, where Auld LJ stated that ‘in the field of employment law, the reasonably incidental risk criterion may be of particular value’. He rejected the suggestion that the test could depend on whether ‘the assailant [was] further up the hierarchical tree’. Lord Reed’s classification in Ward v Scott Railways Ltd [1998] SC 255 was cited. Lord Reed had referred to: ‘an unrelated and independent venture of his own, a personal matter, rather than a matter connected to his authorised duties.’ Lord Carloway considered cases, in which vicarious liability had been established, concluding: ‘The cases are all consistent with the dictum of McLachlin J in Bazley v Curry . . 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 a 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.’
Lord Carloway
Lord Carloway
[2010] ScotCS CSIH – 35, [2010] CSIH 35, 2010 Rep LR 68, 2010 GWD 18-365, 2010 SLT 671, 2010 SCLR 486
Bailii
Scotland
Cited by:
Cited – Weddall v Barchester Healthcare Ltd CA 24-Jan-2012
Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts.
In one case, one employee . .
Cited – Vaickuviene and Others v J Sainsbury Plc SCS 11-Jul-2013
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.
Vicarious Liability
Updated: 11 November 2021; Ref: scu.414916