Jelena Vaickuviene And Others V. J. Sainsbury Plc
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2012] CSOH 69 |
| Docket Number | PD1080/11 |
| Date | 26 April 2012 |
| Court | Court of Session |
| Published date | 26 April 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 69 | |
| PD1080/11 | OPINION OF LADY CLARK OF CALTON in the cause JELENA VAICKUVIENE AND OTHERS Pursuers; against J SAINSBURY PLC Defenders: ________________ |
Pursuers: Campbell, Q.C; McNaughton; Digby Brown LLP
Defenders: Young, Q.C, et Cowan Sol Advocate; Simpson & Marwick
26 April 2012
Summary
[1] This is a personal injuries action which was appointed to the procedure roll. The defenders are not sued in respect of any direct negligence or breach of statutory duty by them. The action is pled and founded solely on the alleged vicarious liability of the defenders for a former employee, Robert McCulloch, (hereinafter referred to as "McCulloch").
[2] The defenders sought dismissal of the action on the basis that the pursuers have not made relevant averments about the basis upon which the defenders are vicariously liable for the actings of McCulloch which would require averments that there was a "close connection" between the actings of McCulloch and his duties of employment.
The Pursuers' averments on Record
[3] The pursuers are members of the family of Roman Romasov. On 15 April 2009, McCulloch attacked Roman Romasov (hereinafter referred to as "the deceased") at their place of work in the defenders' supermarket at Berryden Road, Aberdeen. The deceased sustained multiple stab wounds and died. Thereafter, McCulloch pled guilty to the murder of the deceased and was sentenced to life imprisonment. The defenders were the employers of both the deceased and McCulloch.
[4] It is against that undisputed factual background that the case is pled on behalf of the pursuers.
[5] The critical averments for the pursuers are contained in Article 4 of Condescendence which states:
"The deceased commenced employment with the defender in 2008 as a shelf stacker at the defender's supermarket at Berryden Road, Aberdeen. There were several night shift workers with whom the deceased regularly worked, including Robert McCulloch (hereinafter "McCulloch"). McCulloch was a member of the British National Party. He was known to hold extreme and racist views about Easter European workers coming to the UK. He had frequently made racist comments in the past, and was aggressive and argumentative. There had been bad blood between McCulloch and, inter alios, the deceased for some time. In the days prior to the death of the deceased, numerous members of staff were discussing a threat that they had heard from McCulloch to the effect that he (McCulloch) was going to kill the deceased. There was an incident between McCulloch and the deceased on 13 April 2009 when McCulloch abused the deceased racially. He had told him that he did not like immigrants, and that he should go back to his own country. He was insulting and aggressive. The deceased was distressed thereby, and on the same night he wrote a letter to his line manager complaining that McCulloch had made racist comments towards him. He handed his letter to his team leader, Paul Davies, who subsequently showed it to the nightshift manager, Trevor Bowden. A copy of the letter is produced and its terms held incorporated herein brevitatis causa. The making of racist comments, with or without the aggression manifested by McCulloch, was a disciplinary offence in terms of the defenders' policies, and would have resulted in disciplinary action, including the risk of dismissal. McCulloch was aware of the fact that the deceased had complained about him, and of the potential repercussions. By the time of the death of the deceased, no action had been taken by Bowden who professed later to have been too busy. There had been no action in the intervening days to dismiss McCulloch, or to suspend him, or to warn him formally as to his conduct, or to ensure that the two men were not on shift together; but McCulloch was aware that it was only a matter of a short time before disciplinary action was taken against him. On 15 April 2009 McCulloch and the two men were on shift together. During the shift break shortly after 1am, there was an argument between them, McCulloch having taken aggressive exception to the deceased being at the same staff table as he was. Shortly thereafter, there was a further argument between them, involving aggression including punches being thrown, in the staff toilets. At about 3am, McCulloch was noted by numerous members of staff to be behaving strangely, pacing up and down and talking to himself. At about 3.15am, he removed a kitchen knife from the kitchenware section in the store and attacked the deceased in one of the supermarket aisles. ..."
[6] It is averred that the conduct of McCulloch towards the deceased amounted to harassment in terms of Section 8 of the Protection from Harassment Act 1997. It is further averred that repeatedly stabbing a man to death, is properly to be regarded as one of the ultimate forms of harassment.
[7] The said copy letter dated 13 April 2009, referred to in the pleadings, is 6/3 of process. I have had regard to that letter as part of the pleadings. That letter is capable of being construed as a complaint by the deceased to the defenders about harassment by McCulloch asking them to apply their equal opportunities policies and "punish" McCulloch.
Submissions on behalf of the Defenders
[8] In oral submission, senior counsel for the defenders restricted his submissions to paragraph 1 of the note of arguments for the defenders. In summary, he submitted that for the defenders to be vicariously liable, the pursuers would require to prove that there was a close connection between the wrongful actings of McCulloch and his duties as an employee. The submissions fell into four chapters.
[9] The first chapter dealt with the pursuers' pleadings. Senior counsel drew attention to the averment by the pursuers that the delictual wrong was pled in terms of Section 8 of the Protection from Harassment Act 1997 based on the factual averments set out in Article 4 of Condescendence.
[10] In the second part of his submissions, senior counsel focused on Wilson v Exel UK Ltd T/A Exel 2010 SLT 671. He submitted that this was a critical case for the defenders. He founded in particular on paragraphs 31-33 thereof. In deciding that case, the First Division applied Lister v Hesley Hall Ltd (2001) UKHL 22. In his detailed analysis of Wilson (supra), senior counsel drew attention to the factual background. A supervisor assaulted a fellow employee but at the time of the assault the supervisor was not carrying out any supervisory duty. The employees were both involved in the frozen food storage business. Such work was clearly distinguishable from the class of cases where employees may become involved in aggressive behaviour in the course of their duties. Senior counsel submitted that the court were satisfied that the averments in Wilson indicated that the employee who carried out the assault was not purporting to do anything connected with his duties but was involved in an unrelated and independent venture of his own which involved a personal matter and not a matter connected to his authorised duties. He submitted that was very similar to the present case. The averments in the present case do not set out facts and circumstances from which can be inferred the necessary and critical connection between the duties of the job of McCulloch and the murderous act which he committed.
[11] In support of his third chapter of submissions, senior counsel conceded that in principle there can be vicarious liability for harassment, including harassment under the 1997 Act. That did not however relieve the pursuers from setting out relevant averments to found the necessary connection between the duties of the employment and the murderous act. He referred to Ward v Scotrail Railways Ltd 1999 SC 255, page 263. Senior counsel submitted that in the present case there were some averments that the defenders, as employers, were aware of the harassment by McCulloch of the deceased. Such averments would be relevant in a case founded on the direct fault and negligence of the employers but the averments do not provide a basis for the connection essential to vicarious liability.
[12] In his fourth chapter of submissions, senior counsel made reference to Lister (supra) Lord Clyde at paragraph 50; EB v Order of the Oblates of Mary Immaculate 2005 SCC 60; Bernard v Attorney General of Jamaica (2005) IRLR 398 and Attorney General of British Virgin Islands v Hartwell (2004) 1 WLR 1273. He submitted that these cases were illustrative of how the general rule was applied in relation to cases of sexual assault. In such cases an important factor was whether or not the employee had been given some special role or duty of care in relation to the victim. There were no such averments in the present case.
Submissions on behalf of the Pursuers
[13] Senior counsel founded on the averments in Article 4 of Condescendence, including the incorporated averments relating to the letter, 6/3 of process which was written by the deceased. He drew attention in particular to the averments at page 6A to the effect that the making of racist comments, with or without aggression, was a disciplinary offence in terms of the defenders' policies and would have resulted in disciplinary action including the risk of dismissal. It is averred that McCulloch was aware of the fact that the deceased had complained about him and of the potential repercussions.
[14] Senior counsel said that the most relevant and persuasive case was a case which dealt with harassment, namely Majrowski v Guy's & St Thomas's NHS Trust (2007) 1AC 224. This case was supportive of the pursuers' claim. He submitted that it was not possible for the defenders to distinguish this case in relation to the critical issues. He referred in particular to paragraphs 27-30.
[15] Senior counsel also prayed in aid Walbank v Walbank Fox Designs Ltd (2012) EWCA Civ 25, in particular paragraphs 47-52. The claimant worked at "a...
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