Employer not ‘vicariously liable’ for ‘banter’ which resulted in manager throwing claw hammer and injuring worker

A sheriff principal upheld a sheriff’s decision that the employer could not be held responsible for a “prank” which was unrelated to the employee’s employment.

Sheriff Principal Mhairi Stephen QC heard that the pursuer Christopher Somervillesustained injuries as a result of an accident on 10 June 2013 in the course of his employment as a yard operative with the defenders Harsco Infrastructure, now called S.G.B, at their premises in Edinburgh.

The incident occurred at about 9.30am when Stanley Smith, a yard and transport manager employed by the defenders, came out of his office into the yard and engaged in a “good humoured exchange” with another employee, Robert Bazela.

Mr Smith and Mr Bazela, a fork lift truck driver with the defenders, were joking with each other about who should go for the morning rolls while the pursuer, who was not involved in the conversation, continued with his work nearby.

As Mr Smith walked away towards the yard foreman’s cabin Mr Bazela shouted something in continuation of the light-hearted exchange, and Mr Smith responded saying words to the effect “I will teach you to speak to your manager like that”.

He then picked up a claw hammer, which belonged to the defenders and was used by their employees in the yard, and threw it towards Mr Bazela, but it struck the pursuer on the head, causing him to fall to the ground.

He attended the Edinburgh Royal Infirmary and received treatment for his injuries, which resulted in him being absent from work for about three days.

Following the incident Mr Smith admitted fault and was dismissed for an act of “gross misconduct”, but he and the pursuer were and continue to be good friends.

The value of the pursuer’s loss injury and damage was agreed at £1,200, but Sheriff Kathrine Mackie decided that the defenders were not vicariously liable.

The disputed issue for the sheriff – whether the defenders were vicariously liable for Mr Smith’s actings – was the sole question of law on appeal.

The pursuer’s position was that the sheriff gave “insufficient weight” to the entire incident and especially to the words which passed between Mr Smith and Mr Bazela.

It was submitted that there were certain principles which ought to be taken into account when considering the question of whether an employee is vicariously liable, including the power which is conferred on one employee in relation to the victim.

It was argued that the words “I will teach you to speak to your manager like that” were designed to demonstrate Mr Smith’s superior position with the defenders and underlined that the incident, which took place in the yard while employees were carrying out tasks, occurred in the course of employment.

Mr Smith’s actings were so closely connected with his employment and, in particular, his position as a supervisor that it would be “fair and just” to find the defenders vicariously liable, it was submitted.

However, the defenders argued that Mr Smith’s throwing of the hammer in the context of “light-hearted banter” about who would go for the morning rolls was not a situation where he was truly exercising his managerial function and had nothing to do with the employers’ business other than taking place on the defenders’ premises during the working day.

The circumstances pointed to Mr Smith’s behaviour being “a frolic of a personal nature or horseplay”, an independent venture or “prank of his own quite unrelated to his employment”, and therefore there was “no true connection between the wrongful act and his employment”.

Accordingly, there was no error in the sheriff’s conclusion that the defenders were not vicariously liable for the act of Mr Smith as their employee.

In a written judgment, Sheriff Principal Mhairi Stephen QC said: “The appellant’s argument rests significantly on the use of the words ‘your manager’ and the hierarchy of management and supervision within the yard. However, that argument is undermined by the sheriff’s findings in fact…Standing these findings in fact I am unable to accept the argument that anything turns on the words ‘your manager’ other than a degree of irony.

“Mr Smith’s actings did not further the employers’ aims. There was no friction or confrontation nor abuse of power nor particular vulnerability on the part of the appellant. 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. He was simply engaging in light hearted banter about the rolls. In any event he was not speaking to the pursuer at all.”

The sheriff principal quoted the dictum of McLachlan J in the Canadian Court of Appeal case of Bazely v Cumie in 1999, in which she held 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”, as such an attack “is unlikely to be related to the business the employer is conducting or what the employee was asked to do”.

Sheriff Principal Stephen added: “The facts of this case are consistent with this being an assault on a fellow employee in the course of a prank. It cannot be said that Mr Smith’s reckless act occurred in the course of his employment.”