Somerville v Harsco Infrastructure Ltd: Transferred Intent and the Scope of Vicarious Liability
| DOI | 10.3366/elr.2016.0343 |
| Date | 01 May 2016 |
| Author | |
| Published date | 01 May 2016 |
| Pages | 211-216 |
Bazela and Somerville were managed by Smith at a scaffolding yard. All were employed by Harsco.
[I]t cannot be said that throwing a hammer in the direction of an employee with whom one is having a lighthearted exchange about going to the shop for rolls for the morning break is connected with one's duty to instruct an employee about the work of the defenders. This was in my opinion a frolic of Mr Smith's devising and execution and was unconnected with what he was employed to do.
On appeal, the question for Sheriff Principal Mhairi Stephen QC was whether the sheriff had erred in holding that Harsco was not vicariously liable for Smith's actings. It was held that the sheriff had not. Two points of interest arise from the decisionThe Sheriff Principal held that the facts in
the Sheriff [was] correct to regard the circumstances of this case as similar to those in
The difference between the two cases presents an opportunity to discuss whether transferred intention (A, who aims at B but hits C, is held liable for having intended this outright) may render a person liable for assault in the Scots law of delict. The position is unclear. For example, the first edition of
Although apparently extant in England
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