Scaffolding firm not ‘vicariously liable’ for ‘banter’ which resulted in manager throwing claw hammer and injuring worker

A sheriff principal upheld a sheriff’s decision that the employer could not be held responsible for a “prank” which was unrelated to the employee’s employment.

Sheriff Principal Mhairi Stephen QC heard that the pursuer Christopher Somerville sustained injuries as a result of an accident on 10 June 2013 in the course of his employment as a yard operative with the defenders Harsco Infrastructure, now called S.G.B, at their premises in Edinburgh.

The incident occurred at about 9.30am when Stanley Smith, a yard and transport manager employed by Harsco, came out of his office into the yard and engaged in a “good humoured exchange” with another employee, Robert Bazela.

Mr Smith and Mr Bazela, a fork lift truck driver with Harsco, were joking with each other about who should go for the morning rolls while Mr Somerville, who was not involved in the conversation, continued with his work nearby.

As Mr Smith walked away towards the yard foreman’s cabin Mr Bazela shouted something in continuation of the light-hearted exchange, and Mr Smith responded saying words to the effect “I will teach you to speak to your manager like that”.

He then picked up a claw hammer, which belonged to Harsco and was used by their employees in the yard, and threw it towards Mr Bazela, but it struck Mr Somerville on the head, causing him to fall to the ground.

He attended the Edinburgh Royal Infirmary and received treatment for his injuries, which resulted in him being absent from work for about three days.

Following the incident Mr Smith admitted fault and was dismissed for an act of “gross misconduct”, but he and Mr Somerville were and continue to be good friends.

The value of Mr Somerville’s loss injury and damage was agreed at £1,200, but Sheriff Kathrine Mackie decided that the defenders were not vicariously liable.

Mr Smith’s defence team argued that throwing of the hammer in the context of “light-hearted banter” about who would go for the morning rolls was not a situation where he was truly exercising his managerial function and had nothing to do with the employers’ business other than taking place on the defenders’ premises during the working day.

They said the circumstances pointed to Mr Smith’s behaviour being “a frolic of a personal nature or horseplay”, an independent venture or “prank of his own quite unrelated to his employment”, and therefore there was “no true connection between the wrongful act and his employment”.

Accordingly, there was no error in the sheriff’s conclusion that the defenders were not vicariously liable for the act of Mr Smith as their employee.

In a written judgment, Sheriff Principal Mhairi Stephen QC said: “The appellant’s argument rests significantly on the use of the words ‘your manager’ and the hierarchy of management and supervision within the yard. However, that argument is undermined by the sheriff’s findings in fact…Standing these findings in fact I am unable to accept the argument that anything turns on the words ‘your manager’ other than a degree of irony.

“Mr Smith’s actings did not further the employers’ aims. There was no friction or confrontation nor abuse of power nor particular vulnerability on the part of the appellant. It strains common sense and language to interpret the words and behaviour of Mr Smith as having much, if anything, to do with his duties as supervisor. He was simply engaging in light hearted banter about the rolls. In any event he was not speaking to the pursuer at all.”