A hammer-throwing incident at work led the court to consider whether the employer should be held vicariously liable for the hammer-throwing employee.

Christopher Somerville v Harsco Infrastructure Limited

The Issue

Following a light-hearted exchange between a supervisor and a fellow employee, a hammer was thrown which accidentally struck Mr Somerville.

An earlier decision in the case ruled that Harsco were not vicariously liable for the supervisor.  Mr Somerville appealed, arguing that the court had failed to take into account the seriousness of the incident, and the assertion of superiority made by the supervisor before he threw the hammer.

The Facts

On 10 June 2013, Mr Somerville was working for Harsco in their yard.  His colleague Mr Bazela was also in the yard, as was their supervisor, Stanley Smith.

Smith and Bazela started joking about going on the morning roll run.  As Smith walked away, Bazela continued the banter, shouting something.  Smith responded by saying, “I will teach you to speak to your manager like that,” and picked up a hammer that was nearby, before throwing it towards Bazela.  The hammer travelled approximately 30 feet but rather than hitting Bazela, it hit Mr Somerville on the head.

Following the incident, Smith admitted his fault and was dismissed for gross misconduct.

Mr Somerville argued that the defenders should be found vicariously liable for the acts of Mr Smith as they were closely connected to his employment.

The sheriff who originally heard the case considered that the act was not closely connected with Mr Smith’s employment and that he was on “a frolic of his own” when he threw the hammer.  She dismissed the case.

Mr Somerville appealed.  He argued that the original decision had given insufficient weight to the incident, and especially to the words that Mr Smith used as he was throwing the hammer.  Essentially, he argued that the use of the words “your manager” was enough to establish the close connection necessary between the throwing of the hammer and Mr Smith’s employment duties.

Moreover, it was not simply a frolic or horseplay, as had been the case in Wilson v Exel UK Limited [2010] CSIH 35.  Smith was “a senior employee ... asserting his dominant role”.

Harsco, on the contrary, argued that the incident was all part of a light-hearted exchange, and there was no exercising of a managerial function or assertion of superiority on the part of Smith.  It was simply banter that had gone too far; there was no close connection between the wrongful act and Smith’s employment as was required to establish vicarious liability (Lister & Others v Hesley Hall Limited [2001] UK HL 22).

The decision

The appeal court found in favour of Harsco.

The words used by Smith were clearly part of light-hearted banter and “it strains common sense and language to interpret the words and behaviour of Mr Smith as having much, if anything, to do with his duties as supervisor.”

There was no close connection between the act of throwing the hammer and Mr Smith’s employment duties.

It was simply a prank which had gone too far, and reference was made to Mrs Justice McLachlin in Bazley v Currie [1999] 2SCR 534 where it was said:

“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.”

Our view

The decision is a victory for common sense, and should be the final nail in the coffin of the pursuer’s case, unless he decides to appeal further.

The argument advanced by Mr Somerville that the mere use of the words “your manager” in the context of a light-hearted exchange between colleagues was clearly insufficient to establish a close connection between the reckless act and the employment.

The case serves as a reminder that merely because one employee injures another at work, it does not always automatically lead to vicarious liability on the part of the employer.  It is a further example of the Scottish courts refusing to make a finding of vicarious liability where one employee assaults another.