Christopher Somerville v. Harsco Infrastructure Limited [2015]

In this case, the Sheriff Principal refused a pursuer's appeal to find the defenders vicariously liable as employers for the actions of an employee who had thrown a hammer at a co-worker.  The common sense approach serves as a reminder that even if an accident takes place at work, it will not automatically result in a finding of vicarious liability, particularly where the matter involves one employee injuring another.   

The facts of the case were not in dispute.  Stanley Smith, the defender's Yard and Transport Manager, was involved in a "good humoured exchange" with a fellow employee, Mr Bazela, about going to the shops for rolls in the morning break.The banter concluded with Mr Smith jokingly threatening Mr Bazela with the words " I will teach you to speak to your manager like that".  On that note, he picked up a claw hammer which was lying nearby and threw it in the direction of Mr Bazela.  Unfortunately the hammer travelled further than intended and struck the pursuer on the head. The hammer belonged to the defenders and was used by the employees. 

Mr Smith wasted no time in admitting fault to his employers, albeit he had not intended to hit the pursuer.He was dismissed for this act of misconduct.  The Sheriff at first instance found the defenders were not liable for Mr Smith's actings.

On appeal the pursuers argued that the Sheriff had given insufficient weight to the entire accident, in particular the words which had passed between Mr Smith and Mr Bazela.  Somewhat tenuously they argued that the wording was designed to demonstrate Mr Smith's superior position with the defenders and lay squarely within the course of his employment.  The pursuers contended that this meant his actions did not constitute a "frolic" but rather it was Mr Smith asserting his dominant role as senior manager.  The defenders argued that the incident arose from simple horseplay. 

Perhaps unsurprisingly, the Sheriff Principal found that the use of the words "your manager" and the hierarchy of supervision in the yard were insufficient to make the throwing of the hammer anything other than a frolic of Mr Smith's.  There was no true connection between the wrongful act and Mr Smith's employment.  The case gives a useful précis of the law relating to vicarious liability and when an act will be deemed to fall within the course of employment.  The Sheriff Principal distinguished the authorities in which an employee, in using violence is engaged in something connected with his employer's business from those in which an employee is simply fooling around.In the latter scenario, the employer is not vicariously liable.In addition, the fact that the act took place during working hours and involved tools provided by the employers, was not enough to render them vicariously liable.

Taking a pragmatic approach, the Sheriff Principal found that it would strain common sense and language to interpret the words and actions of Mr Smith as having anything to do with his duties as a supervisor.  The pursuer returned to work after three days, and happily is reported to still be on excellent terms with Mr Smith albeit, one would hope, from a safe distance.