Members of the group with an interest in vicarious liability may be interested in a decision of the appeal bench of the Court of Session handed down today - Vaickuviene v J Sainsbury plc (http://www.scotcourts.gov.uk/opinions/2013CSIH67.html) concerning a particularly unpleasant case where a racist employee murdered a fellow employee at a Sainsbury supermarket. 

The  deceased's family sued Sainsbury as being vicariously liable for the actions of the murderer, which were said to constitute harassment in terms of section 8 of the Protection from Harassment Act 1997. There were - interestingly - no claims of direct liability against the supermarket (e.g. for their negligence in employing a dangerous person known to have racist views, or for their failure to have in place procedures to identify such workers), a point picked up on in the leading judgment of Lord Carloway, the Lord Justice Clerk of the Court of Session (see below).

The decision at first instance was to allow the litigation to proceed to a proof before answer (i.e.. a trial of the facts, before a legal debate), a decision which was appealed against by Sainsbury. The appeal bench has upheld that appeal, and has dismissed the action as irrelevant. 

There is discussion of recent cases on vicarious liability, incl. the Scottish case of Wilson v Exel from 2010 and the English decision in  Various Claimants v Catholic Child Welfare from 2012, as well as references to Canadian jurisprudence which was analysed in the Wilson. 

The view of Lord Carloway on the facts is summed up as being that:

"no matter how broadly the context of [the murderer's] employment is looked at, it is not possible to hold that either the defenders' retail business in general or their engagement of persons to stack shelves in supermarkets in particular carried any special or additional risk that persons so engaged, such as the deceased, would either be harassed or otherwise come to harm as a result of the deliberate and violent actings of co-employees. The risk is no greater than that involved when engaging any two or more employees to work together. The court has been provided with no basis upon which it could hold it just and reasonable for all employers to become vicariously liable for all acts of harassment solely on the basis of such engagement. Using Lord Millett's formula in Lister (supra, at para 65), which found favour with the court in Various Claimants (supra, Lord Phillips at para 72), the defender's objectives did not carry with them a serious risk of their employee committing the kind of wrong which he in fact committed."

Lord Carloway ends with a warning against a judicial temptation to widen the ambit of vicarious liability cases:

"In the circumstances of the present case, there appears to be no logical or other justification for adopting any more generous an interpretation of the general test for the imposition of vicarious liability simply because the wrongful conduct is said to be part of a course of racially motivated harassment. Parliament has legislated specifically in this field (eg Equality Act 2010 section 26) and provided employers with the benefit of a statutory defence where strict liability might otherwise apply (ibid, section 109). It has also recognised elsewhere the need for a compensation scheme in respect of the criminal actings of impecunious persons. In all these circumstances, the courts must be careful to ensure that the future development of the law, particularly in an effort to deal with particular controversies such as child sex abuse, does not undermine too deeply the need for certainty in the field of employers' liability in general."

Finally, it is worth noting a remark of Lord Carloway about the possibilities of having preceded by way of a direct liability case:

"The fact that [the murderer] had a known propensity to be violent to immigrant workers is not relevant to the issue of vicarious liability, although it may well have been in the context of a direct liability case based upon the duty of an employer to take reasonable care to employ competent staff and to supervise their activities whilst on their premises."

This is suggestive of an opportunity missed to plead wider bases of claim than that adopted in the litigation. The deceased had invoked disciplinary procedures against the murderer, and Sainsburys appear to have been aware of his racist views and his aggressive attitude - one wonders whether that would have been enough to have supported a direct claim.  

Martin

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