Hammer throwing not an act in course of employment, court rules

A manager at a scaffolding firm who accidentally struck and injured another employee by throwing a hammer in the course of a lighthearted exchange with a different employee was not acting in the course of his employment, a sheriff principal has ruled.

Sheriff Principal Mhairi Stephen QC gave her decision at Edinburgh Sheriff Court in refusing an appeal by Christopher Sommerville, who failed before the sheriff to recover damages from his employers Harsco Infrastructure Ltd. 

The pursuer had been working in the defenders' yard when the yard manager, Stanley Smith, engaged in a "lighthearted" exchange with another employee, Bazela, about who was going for morning rolls, in which Smith said "I will teach you to speak to your manager like that", picked up a claw hammer and threw it towards Bazela. The hammer instead struck the pursuer on the head to his injury. Smith was subsequently dismissed though, it was said, remained good friends with the pursuer.

On appeal the pursuer that the incident was not one of a frolic or horseplay but happened in the course of a manager issuing instructions. Smith's actings were so closely connected with his employment and, in particular, his position as a supervisor that it would be fair and just to find the defenders vicariously liable.

Sheriff Principal Stephen said the question was whether Smith's conduct could be described as a wrongful and unauthorised mode of doing some act authorised by the employer.

It was well settled, she added, that it was not enough that the act occurred during working hours whilst using tools provided by the employers. Smith's actings did not further the employers’ aims. "It strains common sense and language to interpret the words and behaviour of Mr Smith as having much, if anything, to do with his duties as supervisor", the sheriff principal said. He was simply engaging in light hearted banter about the rolls. In any event he was not speaking to the pursuer at all."

She concluded that the sheriff was correct to regard the circumstances of this case as similar to those in the Inner House decision in Wilson v Exel (2010), which also concerned a supervisor. "The facts of this case are consistent with this being an assault on a fellow employee in the course of a prank", and such an attack was unlikely to be related to the business the employer was conducting or what the employee was asked to do.

Click here to view the judgment.