Leanne Wilson V. Exel Uk Limite Dtrading As "exel"
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Reed,Lord Carloway |
| Neutral Citation | [2010] CSIH 35 |
| Court | Court of Session |
| Published date | 29 April 2010 |
| Year | 2010 |
| Date | 29 April 2010 |
| Docket Number | XA34/09 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Reed Lord Carloway | [2010] CSIH 35 XA34/09 OPINION OF THE LORD PRESIDENT in the Appeal LEANNE WILSON Pursuer and Appellant; against EXEL UK LIMITED, TRADING AS "EXEL" Defenders and Respondents: _______ |
Respondents: J R Campbell, QC; McClure Naismith
29 April 2010
[1] I agree with the Opinion of Lord Carloway and concur in the disposal which he proposes. I add a few observations of my own.
[2] The origins of the doctrine of vicarious liability are obscure, its basis uncertain. The traditional test adopted in the law of Scotland, as well as in that of England, for vicarious liability of an employer for an act of an employee is that expressed in Salmond, Law of Torts, 1st ed. (1907) at page 83, namely, where the wrongful act is done "in the course of the [servant's] employment" being "either (a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master" (see also Salmond and Heuston, Law of Torts, 21st ed., page 443; Kirby v National Coal Board 1958 SC 514, per Lord President Clyde at page 533).
[3] No difficulty ordinarily arises about (a) - indeed it may be doubtful whether it is truly a case of vicarious liability at all, rather than of direct fault of the employer. Difficulties have, however, been encountered with the application of (b). A narrow approach to that test led to the decision in Trotman v North Yorkshire County Council [1999] LGR 584, overruled by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. In the latter case Lord Steyn noted at pages 223-4 that Salmond himself had also said (1st ed., pages 83-4) that "a master is liable even for acts which he has not authorised provided that they are so connected with acts which he has authorised, that they may rightly be regarded as modes - although improper modes - of doing them" (Lord Steyn's emphasis). Acknowledgement of that wider ambit to (b) allowed Lord Steyn to formulate the relevant question as "whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable". On the facts of Lister he answered that question in the affirmative. Lord Hutton and Lord Hobhouse of Woodborough agreed with Lord Steyn, the latter giving additional reasons for his concurrence. Lord Clyde and Lord Millett also concurred but expressed their reasons separately.
[4] Lord Clyde (at para 42) emphasised that in considering the scope of the employment a broad approach should be adopted. If that approach is adopted, "it becomes inappropriate to concentrate too closely upon the particular act complained of" (para 43). "... while consideration of the time at which and the place at which the actings occurred will always be relevant, they may not be conclusive" (para 44). Mere opportunity afforded by the employment will not suffice (para 45). As to the particular circumstances of Lister the wrongdoer's "position as warden and the close contact with the boys which that work involved created a sufficient connection between the acts of abuse which he committed and the work he was employed to do ... Given that he had a general authority in the management of the house and in the care and supervision of the boys in it, the employers should be liable for the way in which he behaved towards them in his capacity as warden of the house" (para 50).
[5] Lord Millett opined (para 65) that the employer "is liable only if the risk is one which experience shows is inherent in the nature of the business". In discussing cases concerning property he says:
"The cases show that where an employer undertakes the care of a client's property and entrusts the task to an employee who steals the property, the employer is vicariously liable ... Experience shows that the risk of theft by an employee is inherent in a business which involves entrusting the custody of a customer's property to employees. But the theft must be committed by the very employee to whom the custody of the property is entrusted ... He takes advantage of the position in which the employer has placed him to enable the purposes of the employer's business to be achieved" (para 79).
In addressing the particular facts of Lister Lord Millett said:
"[The warden] was employed to discharge the school's responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys." (para 82).
That position he contrasted in the same paragraph with that of the groundsman or the school porter.
[6] Lord Hobhouse's additional reasons adopted a somewhat different approach, which for the purposes of this opinion I find it unnecessary to explore.
[7] The central emphasis of the majority of their Lordships was on the close connection between the task with which the employee had been charged and the conduct complained of - that in the particular circumstances being demonstrated by the entrustment of the boys to the charge of the warden in furtherance of the employer's business.
[8] The approach of Lord Millett and Lord Steyn was, in very different circumstances, approved by Lord Nicholls of Birkenhead in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 at para 23. Lord Slynn of Hadley and Lord Hutton agreed with Lord Nicholls. See also Lord Millett at para 129.
[9] In Bernard v The Attorney General of Jamaica [2004] UKPC 47 (another case of intentional tort) Lord Steyn, delivering the advice of the Privy Council, observed (at para 18) that Lister "emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeaser's employment."
[10] In the present case the delict averred is that Reid seized the pursuer's ponytail tightly and pulled her head back, causing her injury. He is said to have made a "ribald" remark as he did so. This conduct may be seen against the background that, according to the pursuer's averments, Reid had on around three prior occasions approached the pursuer by surprise from behind and nudged her in the hips. It is also averred that Reid "had engaged from time to time in horseplay with another female employee of the defenders, Irene Brewster. He would on occasions tug her hair and pat her bottom". The delictual incident may accordingly be seen as a form of horseplay, possibly with sexual overtones.
[11] Reid's employment is averred to be that of "Supervisor" - although another (male) employee stood in the line of management structure between him and the pursuer. Reid's principal task was in selecting goods from the defenders' cold store warehouse. But he had a desk in the portacabin office where the pursuer worked and spent most of his day there. The averments continue:
"Gary Reid instructed the pursuer in her duties from time to time, and his position as Supervisor meant that he was responsible inter alia for the implementation of the defenders' policy with regard to health and safety at work. For example he sometimes advised the pursuer not to attempt to lift items which he believed were too heavy for her."
[12] It is not suggested on averment that Reid's delictual conduct was in any way connected with the performance of his assigned work as supervisor nor with his responsibility for health and safety. While his conduct can plausibly be regarded as quite inconsistent with due regard for health and safety, it was not behaviour in the exercise of his responsibility for those matters. Nor was it done in the exercise of any supervisory role. In these circumstances the pursuer's case on averment clearly fails the test of a close connection between the wrong and the employment. It is accordingly unnecessary to address the further question - which is one of legal policy - as to whether it was so closely connected with the employment that it would be fair and just to hold the employers vicariously liable.
[13] As Lord Millett observed in Dubai Aluminium Co Ltd v Salaam at para 129 the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. Some circumstances may lie close to the line which divides cases where there is vicarious liability from those where there is not. The circumstances figured by way of contrast in Deatons Pty Ltd v Flew (1949) 79 CLR 370 - where the barmaid might have thrown the glass of beer as an incident of what she was employed to do - might be close to that line (see Lord Millett in Lister at para 81). The position of the security guard who committed arson while on patrol (Photo Productions Ltd v Securicor Transport Ltd [1980] AC 827) may, on closer examination, be closer to the line than Lord Salmon (at page 852) may have thought. Potentially close to the line was also the intemperate restaurant manager in Cercato-Gouveia v Kyprianou [2001] EWCA Civ 1887. On the other hand, the bullying and harassing conduct of the departmental manager in Majrowski v Guy's and St Thomas's NHS Trust [2005] 1 QB 848 (affirmed [2007] 1 AC 224) was clearly behaviour in exercise of her supervisory function. In any uncertain case the seminal judgments of the Supreme Court of Canada in Bazley v Curry 174 D.L.R. (4th) 45 and Jacobi v Griffiths 174 D.L.R. (4th) 71 will require to be considered. Such consideration is not required in this case.
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Reed Lord Carloway | [2010] CSIH 35 XA34/09 OPINION OF LORD REED in the Appeal LEANNE WILSON Pursuer and Appellant; against EXEL UK LIMITED, TRADING AS "EXEL" ... |
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