Power v Central SMT Co Ltd [1949] ScotCS CSIH_4 (23 March 1949)

Power v Central SMT Co Ltd [1949] ScotCS CSIH_4 (23 March 1949)

The employer is not vicariously liable for a servant's act done deliberately and out of personal spite, even if the malice arose from the employment relationship; the question of whether the act was within the scope of employment is one for the jury, not a pure question of law for the judge.

Citation
[1949] ScotCS CSIH_4
Parties
Pursuer: Power; Defender: Central SMT Co Ltd
Jurisdiction
Scotland
Judgment Date
23 March 1949
Procedural Posture
Delict (tort) / Appeal on Exception After Jury Verdict
Outcome
first exception sustained; new trial ordered
Legal Topics
Vicarious Liability, Scope of Employment, Malicious Acts by Employee, Jury Directions
Tort Employment Law Vicarious Liability Scope of Employment Malicious Acts by Employee Jury Directions

Case Brief

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Parties

Power

Pursuer

Central SMT Co Ltd

Defender

Procedural Posture

Delict (tort) / Appeal on Exception After Jury Verdict

Legal Issues

  1. 1 Whether an employer is vicariously liable for a servant's deliberate and malicious act done during employment
  2. 2 Whether the trial judge misdirected the jury by treating the employer's liability as a pure question of law in such circumstances

Ratio Decidendi

The employer is not vicariously liable for a servant's act done deliberately and out of personal spite, even if the malice arose from the employment relationship; the question of whether the act was within the scope of employment is one for the jury, not a pure question of law for the judge.

Court Disposition

first exception sustained; new trial ordered

Orders

  • New trial to be held.