Jalena Vaickuviene And Others V. J. Sainsbury Plc
| Jurisdiction | Scotland |
| Judge | Lord McGhie,Lord Brodie,Lord Justice Clerk |
| Judgment Date | 11 July 2013 |
| Neutral Citation | [2013] CSIH 67 |
| Court | Court of Session |
| Published date | 11 July 2013 |
| Date | 11 July 2013 |
| Docket Number | PD1080/11 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Brodie Lord McGhie | [2013] CSIH 67 PD1080/11 OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK in the reclaiming motion JELENA VAICKUVIENE and OTHERS Pursuers and Respondents; against J SAINSBURY PLC Defenders and Reclaimers: _______ |
Act: Campbell QC, McNaughtan; Digby Brown LLP
Alt: Young QC, A Cowan (Solicitor Advocate); Simpson & Marwick
11 July 2013
Introduction and Averments of Fact
[1] The pursuers are the relatives of the deceased Roman Romasov. He was murdered, whilst employed with the defenders, by a co-employee, namely Robert McCulloch, in the defenders' supermarket at Berryden Road, Aberdeen on 15 April 2009. Mr McCulloch pled guilty to the murder and, on 28 July 2009, was sentenced to life imprisonment.
[2] Two matters require to be highlighted at the outset. The first is that the pursuers' claim proceeds only on the basis of the defenders' vicarious liability for the actings of Mr McCulloch, which are said to constitute harassment in terms of section 8 of the Protection from Harassment Act 1997 (article 9 of condescendence). There is no claim of direct liability against the defenders based upon, for example, their negligence in employing, or continuing to employ, a dangerous (in the sense of violent) person "known" to have racist views and a specific dislike of immigrant workers, such as the deceased. There is no direct claim grounded upon any failure by the defenders to have in place appropriate procedures to identify and deal with the harassment of employees. There is no claim of vicarious liability based upon the failure of the defenders' management to respond urgently to the deceased's complaints of aggression, abuse and threats by Mr McCulloch in the days immediately before the murder.
[3] The second is that the action proceeds upon abbreviated pleadings in terms of chapter 43 of the Rules of Court. A motion to withdraw the cause from the procedure under that chapter, and for it to proceed as an ordinary action (RC 43.5), was refused by the Lord Ordinary on 28 July 2011. This is regrettable, given the nature of the case, in so far as it may have resulted in a lack of proper specification of potentially important information; not least averments about what Mr McCulloch was employed to do (beyond being a nightshift worker) and about what both the deceased and Mr McCulloch were engaged upon at the time of the murder. That having been said, however, the pursuers confirmed expressly that all facts to be founded upon after proof had been averred. The court was asked to assume that both were at least supposed to be stacking shelves when the murderous attack took place (see infra).
[4] On 26 April 2012, the Lord Ordinary refused the defenders' motion to dismiss the cause as irrelevant and allowed the parties a proof before answer ([2012] CSOH 69). The defenders have reclaimed that decision.
[5] The averments, such as they are, disclose that the deceased had worked for the defenders as a shelf-stacker since 2008. He was a Lithuanian national. Mr McCulloch, with whom the deceased worked regularly on nightshift, was a member of the British National Party and "known" to hold "extreme and racist views about Eastern European workers coming to the UK". There had been "bad blood" between the deceased and Mr McCulloch for some time. Mr McCulloch had frequently made racist comments and was aggressive and argumentative. In the days immediately prior to the murder, fellow employees had discussed hearing a threat by Mr McCulloch to the effect that he was going to kill the deceased. Neither the threat nor its timing are averred as fact.
[6] On 13 April 2009, Mr McCulloch had told the deceased that he did not like immigrants and that the deceased should go back to his own country. The making of racist comments was a disciplinary offence in terms of the defenders' policies. The deceased was distressed by the incident and wrote a letter of complaint to his team leader which was passed on to the nightshift manager. No action was taken in response to the complaint, of which Mr McCulloch became aware. On 15 April 2009, the deceased was working on nightshift with Mr McCulloch. During a break, at around 1.00am, an argument broke out between them, when Mr McCulloch took exception to the deceased sharing his table. Shortly afterwards, a further argument took place between them in the staff toilets and punches were thrown. At around 3.00am, fellow employees noticed McCulloch behaving strangely, pacing up and down and talking to himself. At around 3.15am, Mr McCulloch removed a kitchen knife from the kitchenware section of the supermarket and attacked the deceased in one of the aisles. The deceased sustained fatal stab wounds.
[7] The conduct of Mr McCulloch towards the deceased is said to have amounted to harassment in terms of section 8 of the Protection from Harassment Act 1997. On that basis, it is averred without further elaboration, the defenders are vicariously liable for that harassment.
Opinion of the Lord Ordinary
[8] The defenders sought dismissal of the action on the basis that, albeit there may be vicarious liability for harassment under the 1997 Act, the pursuers had failed to make relevant averments of a "close connection" between the wrongful actings of Mr McCulloch and his duties as an employee. Under reference in particular to Wilson v Exel UK 2010 SLT 671, it was said that the averred facts and circumstances did not reveal a necessary and critical connection between Mr McCulloch's job and the murder. There were no averments that Mr McCulloch had any special role in relation to the deceased as was present in sexual abuse cases (eg Lister v Hesley Hall [2002] 1 AC 215). The pursuers countered by contending that Mr McCulloch's awareness of the complaint was important. The pursuers' case was indistinguishable from Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224. Under reference especially to Gravil v Carroll [2008] ICR 1222 (Sir Anthony Clarke MR at para 21) and Cercato-Gouveia v Kyprianou [2001] EWCA Civ 1887 (Dyson LJ at para 17), it was said that everything about the harassment, including the murderous assault and the taking of a knife from the place of work, was connected with "the employment situation". There were sufficient averments to satisfy the "close connection" test for vicarious liability. The case was particularly "fact-sensitive" and it could not be said, without hearing the evidence, that the pursuers would necessarily fail.
[9] Having considered certain general material on vicarious liability, the Lord Ordinary expressed the view (Opinion, para [24]) that:
"The development of vicarious liability has been policy driven, the categories ... are not closed and the lines which have been drawn in cases which are fact dependent are not always easy to interpret or reconcile ... [T]he development of vicarious liability is an ongoing process which may take us rather far from some of the earlier cases as the law reflects changing ideas about responsibilities as between employer and employee and who should bear the burden".
The Lord Ordinary observed (para [26]) that the pursuers accepted that they had to aver facts from which it could be inferred that the conduct of Mr McCulloch in harassing the deceased was "in the course of his employment as that concept has been developed in case law such as Lister and in subsequent cases". Both parties accepted that the "close connection" test as stated by the Lord President (Hamilton) in Wilson v Exel (supra) at para [7] was "between the task with which the employee had been charged and the conduct complained of...".
[10] The Lord Ordinary considered, however, that the pursuers' case was distinguishable from Wilson (supra) and plainly influenced by Majrowski v Guy's and St Thomas's NHS Trust (supra). In the context of the general policy considerations which she had noted, and their analysis in Majrowski (Lord Nicholls at paras 28 and 30), the Lord Ordinary recognised the need for employers developing codes of practice and discipline to regulate employees' behaviour. She then stated (para [35]):
"I consider that the type of behaviour which might be encompassed in a harassment case may be very different from an isolated or unexpected outbreak of aggressive behaviour by one employee to another. I do not consider that the case law dealing with individual assaults with employees who have molested or assaulted third parties are determinative of the situation in the present case."
At the same time she acknowledged (para [36]) that, following Majrowski (supra):
"...there are good policy reasons for extending the scope of vicarious liability to harassment cases which satisfy the general principles of vicarious liability. That includes satisfaction of the close connection test."
[11] Nevertheless, the Lord Ordinary concluded (para [39]):
"I read the averments of the pursuers as indicating that the way in which McCulloch carried out his work on a day to day basis in his interactions with the deceased as a fellow employee was infected by the racist BNP views of McCulloch who did not wish to work with a fellow employee from Eastern Europe. Further in the knowledge that the deceased had invoked the disciplinary procedures of the defenders, McCulloch reacted to that with escalating violence resulting in aggression and assault, followed by murder. Looking at the matter broadly, I consider that the pursuers' averments go well beyond averments which merely state these events occurred between employees at their place of work during working hours. The averments in this case are, in my opinion, capable of being construed as entirely connected with McCulloch's work in the way he responded to the defenders' choice of fellow employee and in his reactions to the deceased's invocation of the employer's disciplinary process."
The Lord Ordinary drew a particular...
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