BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Vance & Ors v Bough & Ors [2008] ScotCS CSOH_70 (06 May 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_70.html
Cite as: [2008] ScotCS CSOH_70, 2008 GWD 16-294, 2008 Rep LR 90, [2008] CSOH 70

[New search] [Printable version] [Help]


 

OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 70

 

     

 

 

OPINION OF LORD BRAILSFORD

 

in the cause

 

ANDREW VANCE AND OTHERS

 

Pursuers;

 

against

 

WILLIAM BOUGH AND OTHERS

 

Defenders:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

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.

 


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_70.html