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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 70
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OPINION OF LORD BRAILSFORD
in the cause
ANDREW VANCE AND
OTHERS
Pursuers;
against
WILLIAM BOUGH AND
OTHERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: McEachran, Q.C., Divers; Drummond Miller, W.S.
Defenders: Murphy, Q.C.;
Simpson & Marwick, W.S.
6 May 2008
[1] In
this case, the first pursuer is the executor nominate of his late father,
Andrew Vance (hereinafter "Mr Vance"), who died on 2 June 2004. The first pursuer sues as such executor and
as an individual. The second and third
pursuers are the other children of Mr Vance and sue as individuals. Named as first defender was William Bough
(hereinafter "Mr Bough") against whom decree in absence was pronounced on 6 June 2007. The action continued against North
Lanarkshire Council, the second defenders.
The action is one of reparation for damages sustained by the pursuers as
a result of the death of their late father.
The case was brought under the provisions in relation to actions of
damages arising from personal injuries under chapter 43 of the Rules of
Court.
[2] There
was very substantial agreement in relation to factual matters between parties
in this case, reflected in the presentation at the commencement of the proof of
a substantial joint minute of admissions, helpfully agreeing non-contentious
matters and thereby limiting the need for oral evidence.
[3] The
evidence that remained was led in the course of one court day. This evidence was in narrow compass and there
was little dispute as to material facts between the parties.
[4] In
May 2004, Mr Vance was 66 years of age. He lived in Coatbridge
and had formerly been employed in the steel working industry which once thrived
in Lanarkshire. In particular, he had
been employed in the Gartsherrie Steelworks in Coatbridge. Employees in that factory had, many years
ago, formed a bowling club, the Gartsherrie Bowling Club (hereinafter "the
bowling club"). Mr Vance had been a
founder, and thereafter lifelong, member of that club. By 2004, Mr Vance had retired from
his principal employment in the steelworks but had a retiral job as a doorman
at the bowling club. His duties do not
appear to have been very onerous and involved in the main ensuring that non-members
entering the club, signed the appropriate entry book. He seemed to work at the club most days,
either a dayshift between 12 noon
and 5pm or a backshift between 7pm and 11.30pm. As well as being his workplace, the bowling
club seemed, understandably, to have provided a social focus for
Mr Vance. He had friends who were
also members of the club. By 2004,
Mr Vance was less mobile than he had formerly been and some of his friends
at the bowling club were in the habit of assisting him in his domestic chores
and arrangements by, for example, going for his messages at the local Asda
Supermarket and taking these messages from the bowling club to his home.
[5] On
Saturday 29 May 2004,
Mr Vance was working as a doorman in the club during the afternoon. A friend and fellow club member, Mr Drew
Rogers, had gone to Asda on behalf of Mr Vance and purchased some
messages. Mr Roger's brought these
back to the club in two Asda plastic carrier bags and placed them in a cupboard
like area, evidently called by the members of the club the "dookit" which was a
semi-public area predominantly used by Mr Vance in the discharge of his
duties as a doorman. When Mr Vance
came to leave the club at the end of his shift, another club member and friend,
Mr William Dalziel, went to the dookit on behalf of Mr Vance to
collect his messages. In the dookit he
saw three plastic message bags, the two Asda bags and a blue bag. Mr Dalziel mistakenly thought all three
bags were the property of Mr Vance, picked them up and deposited them at
the front door of the club where Mr Vance was to get a taxi to his
house. Mr Vance was to be
accompanied in the taxi to his house by Mr Rogers. Both Mr Rogers and Mr Dalziel
accepted that, as is apparently his habit, Mr Vance had had a drink or two
during the course of the afternoon.
There was no precise evidence as to how much Mr Vance may have
consumed, but it seems reasonably safe to infer from the evidence, that he was
not completely sober. As it happens, I
do not consider anything in this case turns upon the level of sobriety or
otherwise of Mr Vance.
Mr Rogers collected the three message bags from the door of the
club, put them into the taxi and then accompanied Mr Vance home. Mr Rogers removed the message bags from
the taxi, took them into Mr Vance's house and placed them in a
fridge. This was all at some time on
Saturday evening. Thereafter there is a
gap in knowledge until the late afternoon of the following day, Sunday 30 May 2004. What is known is that during the course of
that Sunday afternoon, Mr Vance became ill. Mr Rogers, at
about 6.30pm went to the house of the second pursuer, Mr Vance's
daughter, and informed her that her father was ill. At or about this time, Mr Vance was
taken to Monklands Hospital. The records of that hospital relative to
Mr Vance were agreed documents and formed number 6/9 of process. From notes made by a consultant on 31 May 2004, the day after his
admission to hospital it would seem that Mr Vance informed medical staff
that he had "drank green liquid from fridge that he thought was fruit
juice". The notes thereafter record that
he "vomited rapidly, vomiting and diarrhoea since" (no. 6/9, page 24). On the basis of the evidence and agreed
documents, what Mr Vance had drunk in the mistaken belief that it was fruit
juice was in fact a weed killer or herbicide containing Paraquat. Paraquat is a toxic substance. As I heard in evidence, Paraquat ingested
orally has an almost universally fatal outcome.
This was the unfortunate situation so far as Mr Vance was concerned. Following his admission to hospital, his
condition deteriorated steadily and he died on 2 June 2004.
[6] There
seems little or no doubt as to how the Paraquat came to be in Mr Vance's
fridge. Mr Bough, who had been the
first defender in this action, was in May 2004 a storeman in the
employment of North Lanarkshire Council, the second defenders. His duties in that employment included
responsibility for a room in which a weed killer labelled "Dextrone X" and
used by the grounds department of the second defenders was stored. In terms of the agreed evidence, the Dextrone X
was contained within five litre plastic containers. Dextrone X is a proprietary herbicide
sold as a soluble concentrate containing 200g/L of Paraquat. These containers were stored within a locked
metal cabinet. Mr Bough was the key
holder responsible for this cabinet. The
cabinet was within a room which was normally kept locked. Again, Mr Bough was the key holder. The room itself was within a building which
was used for storage purposes. That
building was normally locked and again Mr Bough was the key holder. The procedure for getting Dextrone X
from the stores was as follows. A gardener
or person authorised to use herbicide would present a request for the substance
to Mr Bough. Mr Bough would
then open the room containing the metal cabinet, open the cabinet and obtain a container
of Dextrone X. He would then give a
five litre container to the person requesting it. An entry would be made in a book recording
the handing out of a 5 litre container.
When such herbicide as was required had been used the container, either
empty or partially full, was returned to Mr Bough for, in the case of an
empty container, disposal or, in the case of a partially full container, replacement
in the locked metal cabinet in the stores.
No record was kept of the amount of herbicide remaining in any container
on its return to the stores.
[7] Prior
to the events with which this case is concerned, Mr Bough had been an
honest and trustworthy employee of the second defenders. His line managers had no cause to complain
about his work. They had no reason to
harbour any doubts about his reliability on trustworthiness.
[8] At
some date prior to Saturday
29 May 2004, Mr Bough removed a quantity of Dextrone X
from his employers premises. I should
record that the date when this removal occurred was not explored in
evidence. The extent of the evidence in
relation to the removal of the Dextrone was confined to Mr Bough saying
that he took the material in bottles which had formerly contained Volvic
mineral water. He intended to use the
herbicide on his own and his brother's gardens.
The circumstances of how exactly the material came to be removed from
the second defender's premises was not explored in evidence. The quantity removed was neither explored nor
determined in evidence. As a result, I
had no knowledge of when exactly the Dextrone X was removed nor of exactly
how it was removed.
[9] I
should say a little more about the circumstances surrounding Mr Bough's removal
of the Dextrone X. As I have
already noted he said that his purpose in taking the herbicide was to use it on
his own and his brother's garden. He
maintained that, in his own words "ages ago", a long time before May 2004,
possibly as long as 8‑10 years previously, a supervisor had told him
in relation to the Dextrone X that "if there was a wee drop left, if we
don't know anything about it, you can take it".
He did not remember the name of supervisor. He maintained that before the occasion in
May 2004, he had never taken any Dextrone X from his employer's
premises. In cross-examination, he
accepted that he knew at the relevant time in May 2004 that Dextrone X
was dangerous. He knew that the
containers containing the herbicide and stored in the locked cupboard had labels
on them which stated "Paraquat can kill if swallowed. Do not put in a food or drinks
container. Keep out of reach of children. Toxic if swallowed". He knew that the material should not be
removed from his employer's premises. He
knew that no supervisor would have had authority to give him permission to
remove the material. I will return to
this important passage of evidence later in this Opinion.
[10] Whatever the precise circumstances of the removal of the Dextrone X,
by Saturday 29 May 2004,
the substance was in a number of Volvic bottles in the possession of
Mr Bough. On that date, he took the
Volvic bottles to the Bowling Club, presumably in the blue message bag to which
I have already referred. He put them for
safekeeping in the dookit within the club and then went about his
business. Thereafter, as I have already
narrated, the blue message bag with the Volvic bottles containing the Dextrone X
was inadvertently, and tragically, removed from the dookit by Mr Rogers
and found its way from there in the circumstances I have narrated into
Mr Vance's fridge.
[11] Before turning to consider the law in relation to this matter,
it is necessary in the circumstances of this case that I say something more
about the evidence that I heard and in particular how I approach the testimony
of the witnesses in this case. The
pursuers called as a witness, Mrs Lorraine Gallagher, the second pursuer
and a daughter of the late Mr Vance.
They also called as witnesses, Mr Drew Rogers and Mr William
Dalziel, who as already noted were friends of Mr Vance at the bowling
club. The only other witness to fact called
by the pursuers was Mr Bough. The
evidence of a health and safety expert, Mr Stuart was also adduced by the
Pursuers. The defenders called as a witness,
Mr Ian Shiach, the local manager of the Grounds Maintenance Department of
North Lanarkshire Council who was responsible for the stores in which
Mr Bough worked. He was
Mr Bough's line manager. Evidence
was also led from Mr Steven McGuiness and Mr James Wales, both
supervisors in the Grounds Maintenance Department of North Lanarkshire Council
and persons above Mr Bough but below Mr Shiach in the line management
structure of the council. So far as all
of the witnesses of fact, with the exception of Mr William Bough, are
concerned I found them both credible and reliable. They all appeared to be straightforward in
the way they gave their evidence and seemed to be attempting to assist the
court to the best of their recollection.
The only witness whose credibility and reliability I had difficulty in
accepting was Mr Bough.
Mr Bough, obviously had an interest in these proceedings. As already noted he was the first defender
and a decree in absence had already been taken against him. Moreover, as a result of the fatal injury
sustained by Mr Vance, Mr Bough had been prosecuted. He was charged with a breach of
Regulation 4(4)(a) and (b) of the Control of Pesticides
Regulations 1986. He pled guilty to
that charge on 5 December 2005
and was fined ฃ4,000.
Mr Bough's evidence was, in my view, unsatisfactory in a number of
respects. Firstly, as I have already
noted, he maintained that he had been given what he regarded as permission by a
supervisor to remove small quantities of Dextrone X . On his account such permission had been given
some eight or ten years before May 2004.
The permission, if that be the correct characterisation, was given in
the form of being told that if small quantities of herbicide were returned in
the five litre containers, he could take the same for his personal use "if
there was a wee drop left and if we don't know anything about it". Despite the fact that he said that this consent
had been given eight to ten years previously he maintained that he had never removed
any of the herbicide prior to the occasion in May 2004 with which we are
concerned. I found it difficult to
believe that if he had not, as he claimed, been in the habit of removing small
quantities of pesticide he could have remembered, particularly in such precise
terms, the nature of a consent given so long before. Furthermore, despite being examined and cross-examined
on the point, he maintained that he could not remember who the supervisor was
that gave him this permission. Again, I
did not find it credible that if the matter were of such significance there
could be such a lapse in memory. He did
not suggest, for example that there were a large number of supervisors who
could have given such permission. There
was one further, important, inconsistency in his evidence in relation to this
matter. A copy of the Daily Record
newspaper for the 6 December 2005
bearing a report of the court proceedings involving the sentencing of
Mr Bough was produced as an agreed production. That newspaper report contained some
information as to the plea in mitigation presented to the court by
Mr Bough's solicitor. I note that
the name of the solicitor is given in the Daily Record report. As a direct quotation from that plea in
mitigation, the newspaper report indicated that Mr Bough's solicitor had
informed the court that "[O]n previous occasions, Mr Bough had been
permitted by his supervisor to take quantities of the weed killer. On this occasion however, he did not have
permission." A number of points fall to
be made in relation to this, firstly, in evidence to this court, Mr Bough
indicated that he had never taken weed killer from his employer's premises
before May 2004. He said he had
been given a general consent of the sort I have described some eight or ten
years previously. That is clearly inconsistent
with what was presented to the court in December 2005, at least insofar as
reported in the newspaper article, where there is reference, firstly, to
previous occasions of removal of herbicide and, secondly, to consent to such
behaviour being given on more than one occasion. I note that the pursuers did not call as a
witness the solicitor who presented the plea in mitigation despite the fact
that Mr Bough maintained in evidence that he had not given his solicitor
instruction to that effect. Moreover,
one of Mr Bough's supervisors, Mr McGuiness, who gave evidence on
behalf of the defenders, stated in evidence that he had read the Daily Record
report immediately after Mr Bough's conviction. He said that he was concerned when he had
read that a supervisor had given Mr Bough permission to take quantities of
weed killer in the past as he felt this allegation might be directed at him and
might cause him trouble at work. He
maintained that he never had, nor would he ever have given such
permission. He was sufficiently
concerned about this matter to telephone Mr Bough and question him about
this matter. He stated that in the
telephone conversation, Mr Bough maintained he had never informed his
solicitor that he had permission to remove the herbicide. How the matter therefore came to be in a plea
in mitigation is something of a mystery.
Mr Bough when questioned about this maintained he had no memory of
the telephone conversation with Mr McGuiness. In relation to this matter, I prefer the
evidence of Mr McGuiness who was a straightforward witness with no direct concern
in any matter involved with this case.
Having regard to the inconsistencies I have identified I cannot find
Mr Bough either reliable or credible.
I am not prepared to accept his evidence in relation to prior consent
and the removal of the herbicide. In my
view, he was never given authority of the sort he mentioned. I conclude that his removal of the Dextrone X
from the second defender's premises was simple theft.
[12] Before passing from the facts of this case, there is one
further matter I should deal with. The
control of pesticides is regulated by a statutory regime created under the Food
and Environment Protection Act 1985 and regulations made thereunder, the
Control of Pesticides Regulations 1986 (S.I. 1986 No. 1510) and
the Control of Pesticides (Amendment) Regulations 1997 (S.I. 1997 No. 188). The statutory regime provides that no person
should store pesticides unless approval under the Regulations has been given by
the responsible ministers (Regulation 4(4) of the 1986 Regulations). The regulations also stipulate so-called
"basic conditions" subject to which permission to store pesticides may be given. These conditions provide that persons who
store pesticides should "take all reasonable precautions, particularly with
regard to storage and transport, to protect the health of human beings ..."
(Schedule 2(1)(1)((a) of the 1986 Regulations). The statutory framework also provides that it
is an offence to contravene these Regulations (1985 Act,
Section 16(12)). The regulatory
framework further provides that persons storing pesticides and using employees
for that purpose, require to provide such employees with approved
training. In the present case,
Mr Bough, the responsible storeman in the employment of the second
defenders, had been provided with such training. Production 7/2 was an S.A.C. Certificate
of Training dated 11 January 1994,
certifying that Mr Bough had attended a course module approved by the
Ministry of Agriculture, Fisheries and Food entitled "Foundation Module -
Safe Use of Pesticides". The certificate
further provided that Mr Bough had received instructions and guidance as
required under the Control of Pesticides Regulations 1986. Production 7/3 was a Certificate of
Competence dated 3 October 1996
relative to Mr Bough certifying that he had been found competent in the
storage and handling of crop protection products. In evidence, Mr Bough's line manager,
Mr Shiach confirmed that Bough had undergone training as proved by the
certificates and that such training had covered the statutory duties imposed by
the regulatory regime and also approved methods of storage of herbicides. The pursuer's health and safety expert,
Mr Angus Stuart gave evidence and provided the court with a report dated 15 November 2007. In that report, Mr Stuart noted that
Mr Bough had obtained the 1996 certificate referred to. In his conclusions, he observed that:
"Mr Bough
held a certificate of competence in the storage and handling of crop protection
products and hence was well aware of the hazards of Dextrone X, the danger
of filling drinks containers with Dextrone X and the risk of unattended
pesticides to the public."
[13] Against that factual background the pursuers presented a common
law case of breach of duty against the second defenders. That case was in narrow compass and was
expressed as a "duty to take reasonable care for the safety of members of the
public, including the deceased, who were liable to be affected by their
operations." It was averred that the
second defenders "knew or ought to have known that if Paraquat was placed in
unmarked bottles and made accessible to members of the public an accident was
liable to occur" and they were said to be under a duty to "provide and maintain
a system for the safe storage of such bottles of Dextrone X". ... As
well as this direct case, the second defenders were also said to be vicariously
liable for the actings of Mr Bough, the first defender, their storeman and
employee.
[14] Having
dealt with the factual background, I now turn to consider the submissions made
by parties. Mr McEachran, Q.C., who
appeared on behalf of the pursuers, first addressed me on the facts. As I understand Mr McEachran's submissions,
there is only one area where he would not accept the summary of facts I have
presented in this opinion. That relates
to the question of whether or not Mr Bough had tacit authority from a
supervisor to remove small quantities of herbicide from the second defenders'
stores. In relation to that matter,
Mr McEachran invited me to accept that Mr Bough had been told by his
supervisor about eight to ten years prior to the incident in May 2004 that
"if there was a wee drop left, he could take it if we know nothing about
it". He characterised this as
Mr Bough's superior "turning the blind eye" to such behaviour. Mr McEachran accepted that Mr Bough
could not remember the name of the supervisor who had given this permission but
submitted that such lapse in memory was understandable having regard to the passage
of time. Moreover, Mr McEachran
invited me to come to the view that "turning the blind eye" had a ring of truth
about it. He submitted that it would
obviously be more than the job of any employee was worth to admit at the time
of the proof that they had condoned this dangerous practice. I should not, therefore expect any employee,
I assume he was referring to Messrs Shiach, McGuiness and Wales,
to admit to condoning the practice. I
was invited to accept the evidence of Mr Bough as truthful and reliable in
this respect. I have already explained
why I am not prepared to accept this submission.
[15] Mr McEachran then submitted that at common law, there was
a duty incumbent upon the second defenders to provide and maintain a safe
system of storage for the Dextrone X.
Relying upon the evidence of his expert witness, Mr Stuart, he
submitted that there was a defect in the system of storing Dextrone X,
because there was no check on what quantity was returned to the stores after
use and no regular audit of the amount of Dextrone X in the stores. Mr Stuart's evidence was that a better
system, one that provided for regular audit, would discourage and deter
stealing because missing Dextrone X would be bound to show up on such
audit checks. I was invited to look at
this matter in what was said to be a broad and common sense way, asking myself
the question - would the precaution have materially reduced the risk of
theft of the Dextrone X. The answer
to that question, it was submitted, should be in the affirmative because of the
deterrent effect, Mr Bough would know that he would be bound to be found
out if he removed Dextrone X for his own purposes. On this chapter of the submission, my
attention was drawn to Collins v First Quench 2003 S.L.T. 1120,
although no particular part of that case was referred to.
[16] Mr McEachran then turned to address the case of vicarious
liability against the second defenders on the basis of their alleged
responsibilities for the actings of Mr Bough. The submission here was that the second
defenders required herbicide for their own purposes. The herbicide Dextrone X, containing
Paraquat, was clearly a dangerous substance and was covered by the regulatory
regime already referred to. In these
circumstances the second defenders had to take strict steps to prevent it
getting into the hands of the public and in particular, to prevent it getting
into containers which might appear as though they were drink containers to a
member of the public. In support of this
general proposition, reliance was made on two recent House of Lords cases, Lister v Hesley Hull 2001 2 All E.R. 769 and Dubai Aluminium v Salaam
2003 1 All E.R. 97. On the basis of
these authorities, it was submitted that the modern test for determining
whether or not an employer was vicariously liable for the criminal actions of
his employee was whether the criminal acting of the employee were so closely
connected with his employment that they may be properly regarded as falling within
the scope of that employment. If that
test was met, then the employers were vicariously responsible for the actings
of the employee. The legal test I have
set out above was said to be founded upon passages in the speech of
Lord Clyde in Lister (supra) at paragraphs 34-37 and in
particular the passage at paragraph 37 where his Lordship states:
"What has essentially to be considered is the
connection, if any, between the act in question and the employment.
If there is a
connection, then the closeness of that connection has to be considered. The sufficiency of the connection may be
gauged by asking whether the wrongful actings can be seen as ways of carrying
out the work which the employer had authorised."
Mr McEachran submitted that in
the present case, this required the court to consider the closeness of
connection between the delict, which he said was removing the Dextrone X in
Volvic bottles and creating a danger, and the nature of the duties involved in
Mr Bough's employment. He then
sought to describe Mr Bough's employment by saying he was a certified store
man. He was the man responsible for the
safe storage of the Dextrone X. He
was the man who looked after the keys from morning to night. He acted as a bad servant and did exactly
what he was meant not to do, which was to remove Dextrone X in bottles designed
to contain mineral water. He was
carrying out his job wrongly. Viewed in
this way, Mr McEachran submitted that the present case was on all fours
with the factual situation in Central Motors
(Glasgow) Ltd v The Cessnock Garage and Motor Co 1925 S.C. 796. In that case, a motor car had been deposited
in a garage operated by the defenders for safekeeping overnight. During the night, the watchman employed by
the defenders who was in charge of the garage when it was not open, took the
car out for his own purposes, contrary to instruction and without the
defenders' knowledge. Whilst being
driven, the car was damaged. In that
case it was held that as the defenders had delegated their duty of keeping the
car safely secured in the garage to their employee, they were liable to the
pursuers for the servant's failure in performance. As I understood his submission,
Mr McEachran invited me to hold that the present case was on all fours
with Central Motors (supra) and that I was therefore bound by
its decision. In addition to the
foregoing cases, I was also referred to the cases of Inez Brown v David
Robinson and Sentry Service Co Ltd, a decision of Privy Council dated
14 December 2004, Bernard v The Attorney General for Jamaica 2004
UK P.C. 47 and Mattis v Pollock 2004 4 All
E.R. 85. It was submitted that
these cases had all followed the decisions in the House of Lords in Lister and Dubai Aluminium and represented
examples of the principles enunciated in that case in operation.
[17] In conclusion, Mr McEachran submitted that I should, on
the authority of the previously quoted passage from the decision of
Lord Clyde in Lister (supra) look at the facts of the present
case broadly. The present case was about
the storage of a dangerous chemical. The
second defenders had brought the chemical on to their premises for their own
purposes. There were regulations
requiring it to be stored safely and securely.
There was a risk to the public if this was not done. Mr Bough was the man in charge of safe
storage and he failed to store safely.
Public policy required that the second defenders having been responsible
for the dangerous herbicide on their premises bear vicarious responsibility if
their employee fails in that task.
[18] In presenting his submissions on behalf of the defenders,
Mr Murphy, Q.C. indicated that he had twelve propositions. These were as follows.
1. That the second defenders
did not owe a common law duty of care to the public at large as averred on
Record and maintained by the pursuers in submission.
2. In so far as such a
general duty of care may be owed to a class of persons, the late Mr Vance
did not fall within such an identifiable class.
3. The pursuer's own
pleadings recognised the force of the second defenders' second submission noted
above by the use of language at page 14A of the Closed Record where there
was a recognition that the class of persons to whom a general duty of care were
owed was confined to those "who were liable to be affected by their
operations". A person in the position of the late Mr Vance did not fall
into that category.
4. In the absence of a
finding in fact that the second defenders permitted or consented to the removal
of Paraquat from their premises, the legal requirement of proximity and
foreseeability needed for the establishment of a duty of care were absent in
the present case.
5. Even if he were wrong in
his fourth proposition as noted above, Mr Murphy contended that a finding of
duty of care in the circumstances of the present case would amount to an
extension of liability in the law of delict.
Such an extension of liability was not warranted on the
authorities. Moreover, the aspects of
storage, transportation and handling of dangerous weed killer such as Paraquat
was an aspect of activity that was dealt with by a statutory regime. That statutory regime imposed criminal law
sanctions. That factor also militated
against the extension of the law of delict as would be required for a finding
of liability at common law in the present case.
6. The only particularised
breach of duty in the present case was a failure in a duty to provide a
system. No such duty was owed to the
public at large. In any event, the
pursuers' evidence was that such a system as was contended ought to have been
in place, would not have afforded protection against the causative negligence
in the present case. In these
circumstances, there was an absence of proof of causation.
7. So far as the vicarious
liability case made against the second defenders was concerned, it was
dependent upon Mr Bough's act or omission being a breach of duty of care
owed to the late Mr Vance. In this
setting, the relevant act was committed by Mr Bough having the Volvic
bottles containing the Paraquat in a semi public place.
8. More broadly, if the
relevant act includes theft of the bottles of herbicide and leaving them
unattended, then this would advance the pursuers' position no further.
9. The pursuers are not
assisted whether or not the relevant act is looked at in the narrow sense
outlined in the seventh proposition or more broadly, as outlined in the eighth
proposition. Neither causative act was
within the course of Mr Bough's employment with the second defenders.
10. A proper understanding of
the relevant case law demonstrated that there was no close connection between
the causative act and the duties that the employee was employed by the second
defender to perform. The act complained
of was not a reasonably incidental risk inherent in the type of business or
undertaking the second defenders carried on.
11. In attempting to analyse
whether or not there was a close connection between the causative act and
Mr Bough's employment, there were only two factors the pursuers could
point to in support of their position.
These were firstly, that his employment gave Mr Bought access to herbicide. Secondly, that Mr Bough was entrusted by
the second defenders with looking after herbicide in the course of his
employment. Against that Mr Murphy
submitted, there were a number of factors which could be identified which
suggested that there was no close connection between the causative act and
Mr Bough's employment. These were
that the removal of the herbicide was a theft.
That whilst there was an evidential blank as to the exact mechanism of
the removal of the herbicide from the second defenders' premises, the evidence
did clearly show that the negligent act took place outwith working hours and
away from Mr Bough's place of employment.
That the underlying intent on Mr Bough's part was to use the herbicide
for his own purposes and not for any use that was connected in any way with his
employment. That this is not a case
where there was any direct relationship between the second defenders and
Mr Vance nor was this a case where property belonging to Mr Vance had
been entrusted to either the second defenders or its employees. That employers were not ordinarily
responsible for criminal conduct on the part of their employees. Lastly, that on the evidence in relation to the
causative act, at no stage did Mr Bough act as an employee of the second
defenders or hold himself out as such an employee. Having regard to all these factors, it was
submitted that it was clear on the facts that the injury to Mr Vance was
due to what could be properly described as Mr Bough acting on a frolic of
his own. Mr Murphy's twelfth and last
submission related to his case of contributory negligence. He was very frank in presenting this argument
as very much a secondary part of his argument.
I will deal with this aspect of the case at the end of this Opinion.
[19] In elaboration of these propositions, Mr Murphy firstly
invited me to regard all the witnesses led by the second defenders as credible
and reliable. In fact in relation to all
the witnesses, Mr Murphy only challenged the evidence of Mr Bough. He invited me to find Mr Bough neither
reliable nor credible. Turning to the
law, Mr Murphy first made submissions in relation to the direct liability case
against the second defenders. In that
regard and in relation to the regulatory regime that was in force relative to
the storage of pesticides he submitted that standing the existence of such a
regime and under reference to Cutler
v Wandsworth Stadium Ltd [1949]
A.C. 398 there did not exist a separate private law remedy available to a
person in the position of the late Mr Vance and such as contended for by
Mr McEachran. My attention was
drawn to a passage in the speech of Lord Simonds in the House of Lords in Cutler (supra) at 407-408. It
was contended that the position in that case was echoed in the present
case. The obligation imposed on a person
in the capacity of the second defenders was enforceable by criminal
sanction. By the creation of a
regulatory regime with criminal sanctions, Parliament had chosen to deal with
this matter as a public law issue. In
the circumstances, there should be no private law remedy.
[20] In relation to the direct liability case against the second
defenders, Mr Murphy also drew my attention to Caparo v Dickman [1990]
2 A.C. 605 and in particular to the well known passage in the speech of
Lord Bridge of Harwich at page 617C.
Applying Caparo (supra) Mr Murphy
said that in the present case the pursuer did not surmount the hurdles of
foreseeability and reasonable proximity.
In regard to the second Caparo test,
proximity, attention was also drawn
to Attorney General of British Virgin
Islands v Hartwell [2004] UK
P.C. 12 and to a passage in the advice of the Privy Council delivered by
Lord Nicols of Birkenhead at paragraph 18. In the present case so far as the direct
liability issue was concerned, the only criticism was in relation to the system
of work. The system case was said, as a
matter of averment, to be operational only against people who were "liable" to be
affected by it. In the present case,
there could not be said to be legal proximity of the requisite quality such as
to render Mr Vance a person who was liable to be affected by the system
instituted and operated by the second defenders. It was observed that in Attorney General of the British Virgin Islands (supra) (at paragraph 18) the police
authorities, who were the employers, knew or ought to have known that the
policeman was not a fit and proper person to be entrusted with a gun. It was that knowledge, direct or imputed,
which gave rise to the necessary proximity to found the duty of care. That factor was absent in the present case
where, prior to the incident in May 2004, Mr Bough had been a good and
trustworthy employee.
[21] In relation to vicarious liability, Mr Murphy referred me
to Joel v Morison (1834) 6 CAR & P 502, Kirby v N.C.B. 1958 S.C. 51, the opinion of the
Lord President (Clyde) at page 532, Central Motor (Glasgow) Ltd (supra),
Heasmans v Clarity Cleaning Co Ltd [1987] I.C.R. 949, Lister (supra), Dubai Aluminium (supra), Mattis (supra), Inez Brown (supra), Attorney General for
the British Virgin Islands (supra)
and Bernard v Attorney General of Jamaica, Privy Council Appeal No. 30
of 2003. It will be observed that
although Mr Murphy's review of the relevant authorities was more extensive
than that presented by Mr McEachran in the essentials, there was common
ground. That common ground was that the
law in relation to vicarious liability was expressed in the passage in the
speech of Lord Clyde in Lister (supra) at paragraph 37 already
quoted. Both parties in this litigation
agreed that this formulation expressed the current law. Beyond this Mr Murphy submitted that the
law recognised that an employer might, by his actings, assume a relationship to
a pursuer more extensive than those owed to the public at large. In this regard my attention was drawn to a
passage in the speech of Lord Hobbhouse in Lister (supra) at
paragraph 54;
"What these
cases and Trotman's case in truth
illustrate is a situation where the employer has assumed a relationship to the plaintiff
which imposes specific duties in tort upon the employer and the role of the
employee (or servant) is that he is the person to whom the employer has
entrusted the performance of those duties.
These cases are examples of that class where the employer, by reason of
assuming a relationship to the plaintiff, owes the plaintiff duties which are
more extensive than those owed by the public at large and, accordingly, are to
be contrasted with the situation where a defendant is simply in proximity to
the plaintiff so that it is foreseeable that his acts may injure the plaintiff
or his property and a reasonable person would have taken care to avoid causing
such injury."
The case of Central Garage (Glasgow) Ltd (supra)
which was founded upon by the pursuers in the present case was said to be an
example of a special relationship case, in that case the special relationship
was created when the garage proprietor accepted the pursuer's motor car into
his care for overnight storage.
[22] On the facts as I have narrated, Mr Murphy submitted that
there was no special relationship.
Properly analysed, the present case did not give rise to circumstances
where there was sufficient closeness of connection to give rise to a duty under
the vicarious liability principles.
[23] The background to determining this case is, plainly,
ascertainment of the factual situation.
In that regard, as I have already indicated, I consider that the
critical issue revolves round the circumstances in which the herbicide
containing the Paraquat came to be removed from the second defenders'
premises. In relation to that matter, I
have no real doubt as to the correct interpretation of the evidence. I am satisfied that the second defenders
instituted and maintained a proper and reasonable system for the storage of the
herbicide. They not only provided a
locked cabinet and locked room in which the material was stored, but they
provided proper and appropriate training to a member of staff to ensure that
the material was handled in a safe manner.
In my view, the only reason that this system broke down was because of a
wrongful act, a theft, of some of the material by Mr Bough, the first defender. I am, further, satisfied that this theft was
carried out wholly outwith the knowledge and control of the second
defenders. I am of the view that all of
the second defenders' managerial staff who gave evidence were well aware of the
dangers of the stored herbicide. They
were well aware that the herbicide
required to be stored in safe and secure premises. I am satisfied that none of these persons
would have given consent to the wrongful removal of herbicide from the second
defenders' premises. Further, I am
satisfied that none of those persons would have condoned the removal of even a
small quantity of the herbicide from the second defenders. For the reasons I have already given, I
cannot accept Mr Bough's evidence that some person in the second
defenders' employment would have agreed to "turn a blind eye" to the removal of
the herbicide. In my view, that
explanation was no more than a falsehood created by Mr Bough in an attempt
to mitigate the sentence to be visited upon him in the criminal
proceedings. I am satisfied that the
removal of the herbicide from the second defenders' premises was wholly outwith
the scope of Mr Bough's employment with the second defenders.
[24] Having formed that view of the evidence, I now have to address
the law in relation to that. In that
regard, the first matter is the direct case of fault pled by the pursuers
against the second defenders. That case
is that there was a general duty of care owed by the second defenders to those
"members of the public" such as Mr Vance who were liable to be affected by
their operations. I do not accept that
as a matter of law, Mr Vance fell within a category of persons to whom
such a general duty of care was owed.
The only way in which the generalised duty was particularised was an
alleged failure to provide a system that would have protected persons such as
Mr Vance. Again, I do not consider
that such a wide duty was owed to persons in the category of
Mr Vance. Moreover, on the
evidence, I cannot be satisfied that any such system as desiderated by the
pursuers would have had the effect contended for. It was maintained by the pursuers that a
system whereby the exact quantities of herbicide being returned after use were
logged would have prevented the removal of the material by Mr Bough. In my view, that is not correct. As was pointed out by the second defenders,
Mr Bough could simply have falsified the records. It was also contended that a periodic audit
would have prevented the occurrence which took place. Again, I consider that argument to be
incorrect. By definition, periodic
audits take place from time to time.
Illicit removals between audit checks could have occurred and would not
have prevented the circumstances which gave rise to the current case. Moreover dilution of the Dextrone X
in the stores by a person such as
Mr Bough intent on stealing some could have circumvented both audit and
logging of return quantities of herbicide.
For all the foregoing reasons, I do not consider that the argument in
favour of liability at common law can succeed.
[25] I turn to consider the issue of vicarious liability. Despite the fairly extensive citation of
authority, there seems little doubt that the current law in Scotland
is accurately stated in the decision in the House of Lords in Lister (supra). Parties appeared to recognise and be in
agreement that the test to be applied is that desiderated in the speech of
Lord Clyde in Lister at
paragraphs 34-37 and in particular, the passage at paragraph 37 which
I have already quoted. If that is
correct, as seems to be accepted, then what this court requires to do, is
consider the evidence to establish if there is a connection between the
employment and the wrongful acting. If
there is a connection then the closeness of that connection requires to be
considered having regard in particular to whether the wrongful actings which
gave rise to the damage can be regarded as ways of carrying out the work which
the employee had been authorised to perform.
Approached in this way it can, I think, be seen that the cases where
liability has attached to the employee have all been ones where in some way the
wrongful act was an incident of the employment, albeit one which the employee
was not authorised to perform. Thus in Lister (supra) itself, the employee was
the warden of a boarding house attached to a school. Part of his employment involved the normal
domestic arrangements for boarders. The
wrongful acts, the sexual abuse of the children, occurred as an incident,
albeit a wrongful incident, of such employment.
Likewise in Dubai Aluminium Co Ltd
(supra) the fraudulent scheme created by the employee to the detriment of
the pursuers was something that was incidental, albeit wrongful, to the
person's employment as a solicitors. The
other authorities to which I was referred that post-date Lister (supra) where vicarious liability has attached to the
defenders, all have similar considerations in common. The cases which precede Lister (supra) are all also capable of being construed in this way.
[26] If that approach be correct, then in the present case, I
require to consider whether or not the removal of the herbicide by
Mr Bough was something done which was incidental to his employment. In my view, it was not. Mr Bough's employment was to be
responsible for the herbicide and to issue the same to employees of the second
defenders when requested and required for gardening duties. His duty was also to receive returned
herbicide that had not been used for gardening purposes and lock the same in
the stores. The theft of such material
for his own use was not an incident of such employment. On my foregoing analysis there was, in my
view, no connection between his employment and the delict. The delict was connected only with an act wholly
outwith the scope and nature of his employment.
It was moreover something which his employers, having regard to his
previously unblemished work record, could not have foreseen. Furthermore, as already observed it was
something which his employers could not reasonably have prevented. In these circumstances, I do not consider
that the second defenders are vicariously liable for the acting of
Mr Bough, their employee.
[27] In presenting his case, Mr Murphy for the second defenders
had a fallback position that, in the event of liability being established, the
late Mr Vance was contributory negligent.
In fairness to Mr Murphy, he advanced this argument without much
enthusiasm and stressed that it was no more than a fallback argument. Whilst, standing the views I have already
expressed, it is not strictly necessary to consider this matter, I should
indicate that I did not regard that argument as having any merit. It seems to me that a person such as the late
Mr Vance would have, with no disrespect intended to him whatsoever, little
interest or knowledge in brands of mineral water, fruit juice and the
like. He appears to have relied fairly
heavily on his friends at the bowling club to get his messages for him. On the evidence, it seems to me, that at some
stage after his return from the bowling club on the Saturday evening, he would
have gone to his fridge looking for something to drink. He saw bottles containing a dark coloured
liquid which he might easily have mistaken for fruit juice. He drank the same. I do not consider he can be criticised or
held in any way responsible for taking that tragic step.
[28] As will be apparent from the terms of this Opinion it has not
been necessary for me to form a view as to the second defender's argument as to
whether or not a private law remedy was available to the pursuers.
[29] Having regard to all the foregoing, I shall pronounce decree of
absolvitor in favour of the second defenders.
