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Vicarious Liability for Intentional Acts
Leanne Wilson v Exel UK Limited [2010] CSIH 35
In this case the Inner House considered the question of whether an
employer could be held liable for an intentional act by a supervisor
committed against another employee. It is interesting for the analysis
of the House of Lords decision in Lister v Hesley Hall [2002] 1 AC 215, and the test that now has to be applied following Lister of “sufficiently close connection.”
The pursuer worked as a clerk in an office with various people
including her supervisor. It was averred that the supervisor crept up
behind her whilst she was typing, grabbed her ponytail tightly and
pulled her head back as far as it could go. As a result she was
injured. There was a history of previous “horseplay” by the
supervisor.
It was confirmed by the Inner House that Lister is now to be taken as
definitive in establishing when vicarious liability is to attach to an
employer for his employee’s actings. 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.
In his Opinion the Lord President applies the Lister test to this case
and finds that it fails the test of close connection between the wrong
and the employment. He finds that the supervisors conduct was not done
in the exercise of any supervisory role, nor as part of his
responsibility for health and safety.
Lord Carloway looks at Lister and the cases that followed it. He draws
a distinction between the cases where an employee uses violence as part
of his job and is engaged upon something connected with his employers
business, where the employer is liable (nightclub bouncer in Mattis v Pollock [2003] 1 WLR 2158),
and those cases where the employee is not doing something connected
with his duties, but is engaged on a “frolic” of his own.
He found that this case fell into the latter category, as the
supervisor’s actions were unconnected to his work other than that
they were committed during working hours and at work. The
pursuer’s appeal was refused.
The Lord President did accept the submission that the circumstances in
which an employer may be vicariously liable for intentional conduct are
not closed. Clearly each case will depend on the facts and there is
still scope for development in the area of vicarious liability for
intentional acts.
Work Equipment Regulations 1998
James Johnstone v Amec Construction Limited [2010] CSIH 57This
is an important decision of the Inner House on the question of
suitability of work equipment (Regulation 4) and whether the equipment
is maintained in an efficient state, in efficient working and in good
repair (Regulation 5). Delivering the Opinion of the court Lord Bonomy
reviews many of the cases on maintenance of work equipment.
The pursuer suffered injuries when he tripped over the feet of a
section of a barrier that had been blown over. He was working as a
security guard on a construction site. He tried to lift the barrier and
failed. He was injured as he stepped between the end of the fallen
barrier and the start of the next section of barriers and caught his
foot on a rubber boot attached to the bottom of the fallen section.
The Inner House accepted the submission that the fact that the barrier
fence failed to remain in position and was blown over by the wind meant
that it was not maintained and there was a breach of Regulation 5(1).
It was found that the barrier was being used by the pursuer at the
time. It was part of the work equipment used to delineate parts of the
construction site and to afford access to a car park area.
On the question of foreseeability (Regulation 4) the question in this
case was whether the risk that the barrier might be blown over and thus
potentially cause injury was a foreseeable risk. On the findings made
by the sheriff that was plainly the case, as the evidence showed that
there was a risk of the section blowing over in windy conditions. The
importance of risk assessments in relation to the suitability of work
equipment is emphasised by the Inner House, confirming what was said by
the House of Lords in Robb v Salamis (M&I) Ltd 2007 S.C. (HL) 71.
Stephen O’Brien v Hussman (Europe) Limited Glasgow Sheriff Court (Sheriff Clark) unreported, 25th January 2010.
In this case the Sheriff applied the Inner House decision in Tonner v Reiach and Hall,
and dismissed the action on the basis of “inordinate and
inexcusable delay”. The index accident occurred on 13th December
1996 and the action was raised on 10th December 1999 and almost
immediately sisted – on the defenders’ motion - albeit for
a relatively short period until 17th January 2002. The case is of some
interest in that, unlike the majority of the cases in this area, there
was no one period of inordinate delay and very few lengthy periods when
there was simply no activity on the file. Rather the action was
characterised by slow progress throughout with weeks or months passing
between each step in the process, and it was this aspect of the case
which formed the primary basis of the Sheriff’s judgment. He said
that “throughout this action there has been no sense of urgency
to move matters forward, indeed on the contrary the pace has been
staggeringly slow”. Against the background that the action was
raised just before the triennium, the Sheriff was satisfied that he was
entitled to consider the whole period of the delay, and that in the
circumstances the delay was inordinate and inexcusable. There was also
unfairness because a number of witnesses were unwilling or unable to
give evidence and at least one could not be traced. It should be noted,
however, that an appeal to the Inner House has been marked and is due
to be heard in May 2011. The case is clearly distinguishable from Tonner
on the facts, and it will be for consideration whether (a) it was
appropriate in the circumstances to grant such a “draconian
remedy of last resort” and more particularly (b) whether it is
appropriate to dismiss an action where progress is slow, and there is a
lengthy delay overall, but there is at least some activity on a file
throughout the dependence of the action. Meanwhile, a reclaiming motion
in the case of Hepburn v Royal Alexandria Hospital [2008] CSOH
81 is currently at avizandum, and the decision in that case may provide
further guidance as to the circumstances in which the court’s
power to dismiss for inordinate delay may be exercised.
Roslyn Mykoliw and others v Botterill and Tulloch Transport Limited [2010] CSOH 84
This case, which is a decision of Lord Pentland on a procedure roll
debate, is interesting for five reasons. First, and most
straightforwardly, it holds that a step-parent, related to a deceased
child by affinity, has a right of action (if he or she has accepted the
child as a child of the family) under section 1(4) of the Damages
(Scotland) Act 1976 as amended, in spite of the provisions of section
1(4A) of that Act, as inserted by the Family Law (Scotland) Act 2006
which states - quite clearly - that “no award of damages under
subsection (4) above shall be made to a person related by affinity to
the deceased.”
Second, Mykoliw holds that a purposive interpretation of statutory
provisions is permissible, even where the statutory language contains
no ex facie ambiguity [see paragraph 17] and the statutory language is clear.
Third, it holds that a Scottish Law Commission Report preparatory to
the passing of legislation may be examined in order to ascertain the
intention of the legislature, at least in cases where the Law
Commission’s advice is clear [compare Monteith v Cape Insulation Ltd
1998 SLT 456; 1998 SC 903 (Inner House)]. Fourth, it holds that
differential legal treatment as between married and unmarried family
members would be discriminatory and incompatible with Article 14 of the
ECHR (when read with Article 8), and would require the statutory
provision in this case to be “read down” whatever the
result of applying conventional interpretative techniques.
Fifth, and perhaps most importantly, it reveals very clearly (a) flaws
in the drafting of the 1976 Act as now amended and the urgent need for
reconsideration of its terms, and (b) that even where statutory
provisions are apparently clear in their terms, there may be a need to
have regard to the legislative history, and to exercise a considerable
degree of caution in their interpretation.
Mhairi Stainsby v Janice Fallon [2010] CSIH 64
This was a civil jury trial in which the trial judge held after he had
heard the pursuer’s case that this was “one of those rare
cases” in which on the evidence it was his duty to withdraw the
case from the jury. On a motion for new trial by the pursuer, that
decision was over-turned by the Inner House. Delivering the Opinion of
the Court, Lady Paton re-iterated the established rules that a case may
be withdrawn from a civil jury only in “rare and exceptional
cases” where (a) there is “no evidence upon which a jury,
properly directed could find in favour of the pursuer”, and in
reaching a decision on that issue, the trial judge must bear in mind
that the jury are entitled to draw inferences from the available
evidence that are most favourable to the pursuer; or (b) where there
has been a major departure from the pleadings, or a lack of fair notice
in the pleadings, resulting in material prejudice to the defender: a
mere discrepancy between the pleadings and the evidence is not enough
to justify withdrawal (see Mitchell v Caledonian Railway Co 1910 SC 546; McDonald v Duncan 1933 SC 737).
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