Employment Law Cases

Chell v Tarmac Cement and Lime Ltd

An employer was neither directly nor vicariously liable for injuries inflicted on one of its contractors by one of its employees playing a practical joke.

Background

Mr Chell was employed by Roltech and worked as a contracting fitter for Tarmac (who also directly employed its own fitters). Tensions arose between the contracting fitters and those employed by Tarmac. One of Tarmac’s own fitters, Mr Heath, as a practical joke, detonated two explosive pellets close to Mr Chell which resulted in a perforated right eardrum, noise-induced hearing loss and tinnitus. Mr Heath was dismissed by Tarmac. Mr Chell brought a negligence claim directly against Tarmac and also against Tarmac as being vicariously liable for the actions of Mr Heath.

Tarmac denied that the actions of Mr Heath were within the course of his employment, ‘horseplay’ not being part of an individual’s employment. It denied any liability for Mr Heath’s actions which it said were wholly outside the scope of any reasonable foreseeability, risk assessment, HSE guidelines or his employment but were actions of his own volition without any sufficient connection to his employment to make Tarmac liable. The county court agreed, and Mr Chell appealed.

High Court decision

The appeal was dismissed.

The judge prefaced his judgment by saying ‘the practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong’, followed by an apposite Mark Twain quote.

On the vicarious liability issue, two questions had to be asked. What functions or ‘fields of activities’ had been entrusted by the employer to the employee? Was there a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it right for the employer to be held liable? The High Court held that the county court had correctly applied the law in finding that Tarmac could not on this basis be found vicariously liable for Mr Health’s actions. What is more, the decision of the Supreme Court in Morrisons v Various Claimants (which the county court did not have access to) gave even more weight to its decision.

On the direct breach of duty issue, the High Court endorsed the comments of the county court which stated that ‘horseplay, ill-discipline and malice are not matters that [I] would expect to be included within a risk assessment’. Tarmac was an employer which took its health and safety responsibilities seriously and, in that context, it was expecting too much of an employer to devise and implement a policy or site rules which descended to the level of horseplay or the playing of practical jokes. The county court was, on the evidence, entitled to conclude that:

• the existing site health and safety procedures which included a section on general conduct stating ‘no-one shall intentionally or recklessly misuse any equipment’ was sufficient given the multifarious ways in which employees could engage in horseplay, ill-discipline or malice and nothing more specific could reasonably be expected, and
• increased supervision to prevent horseplay, ill-discipline or malice was not a reasonable step to expect this employer to have identified and taken

Mr Chell appealed.

Court of Appeal decision

The appeal was dismissed.

The Court of Appeal held that there was an insufficient connection between the employer-employee relationship and the prank, so the employer was not vicariously liable for the individual’s actions. Lady Justice Nicola Davies stated that ‘the risk created by this employee was not inherent in the business’ and ‘on no basis could it be said that [the employee] was authorised to do what he did by Tarmac’. Further it held that ‘it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure that their employees did not engage in horseplay’. Nor was Mr Heath’s act an unlawful mode of doing something authorised by Tarmac.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2022/7.html

Comment

There have been a number of cases recently on vicarious liability and it is clear that the courts are taking a hard line on what liability an employer has for the actions of its employees/contractors and it is not enough to say that they were given the opportunity to do so because of their employment. Where those actions are committed during the course of a claimant’s employment but it is not reasonable for that kind of action to have been taken into account in a risk assessment then the claim will fail. This was seen in relation to an auditor uploading all employee personal details onto the dark web (Morrisons), a contracted doctor assaulting Barclays employees who were sent for medicals, and a visiting scientist picking up and dropping an employee on the dance floor at a Cancer Research UK Christmas party causing her serious injury (Shelbourne v CRUK).

It is always a good idea to have a clause in an employment contract making it clear that the employee will not commit unlawful acts or engage in any inappropriate behaviour whether meant in jest or otherwise.