In Vaickuviene v J Sainsbury plc  CSOH 69 the Outer House of the Court of Session (the equivalent of the High Court in England) was asked to consider the application of vicarious liability for the murder of a Lithuanian shelf stacker at Sainsbury in Aberdeen by another worker.
Robert McCulloch, a member of the BNP, admitted stabbing Roman Romasov to death in 2009. The murder followed several months of racist, insulting and aggressive conduct by McCulloch towards Romasov.
His family brought a claim against Sainsbury asserting that McCulloch’s conduct amount to harassment in breach of the Protection of Harassment Act 1997 and that repeatedly stabbing a man to death, is properly to be regarded as one of the ultimate forms of harassment.
In bringing the claim, no fault was attributed to Sainsbury but it was said it was vicariously liable. Sainsbury sought to have the case struck out on the grounds that it was not.
Vicarious liability is the imposition on an innocent employer of legal responsibility for the wrongs of its employees. This is at odds with the general approach of the common law under which liability is imposed on the wrongdoer on the basis that it is the wrongdoer who is liable for his own acts. Nevertheless over many years the courts in accepting and applying vicarious liability have recognised that for a range of policy considerations, an employer may be held liable for negligent acts, intentional acts and criminal acts of an employee acting “in the course of his employment”.
Historically, liability was confined to circumstances in which the employee’s wrongdoing was related to his job and did not extend to what were described as a ‘frolic of his own’. However, in Lister v Hesley Hall (2001) UKHL 22, the scope of vicarious liability was extended to encompass any act which was ‘sufficiently closely connected’ to his employment and so applied to criminal acts committed by employees.
As readers will know, it was made clear in Majrowski v. Guy’s and St. Thomas’ NHS Trust  UKHL 34 that the ordinary principles of vicarious liability apply to claims under the PHA.
As both men were employed by Sainsbury and the events had all taken place during their employment, it would have seemed at first blush that there should be no question that vicariously liability applied but Sainsbury made a good fist of arguing to the contrary.
Predominantly, they argued that although the protagonists came into contact through work, the dispute was unconnected with their employment. Moreover, McCulloch had no supervisory or other special relationship with Romasov as was true in other authorities.
Ultimately however, the Judge was not convinced. She agreed with the Claimant that a broad view must be taken when considering the ‘close connection’ test. It was not possible at this stage to say that vicarious liability could not apply and so she refused to strike the claim out.