In a significant decision for employers, the Court of Appeal has recently dismissed an appeal relating to a claim for personal injury resulting from a workplace practical joke that went wrong. In Chell v Tarmac Cement and Lime Ltd, the Court of Appeal held that the employer was not vicariously liable for the acts of its employee who played the practical joke because he was not acting in the course of his employment at the relevant time. Further, the employer had not breached its duty to prevent a foreseeable risk of injury.
Mr Chell was a contractor employed by Roltec Engineering Limited (“Roltec”). From December 2013, he worked at a site operated and controlled by Tarmac Cement and Lime Limited (“Tarmac”). Roltec’s contractors worked alongside fitters directly employed by Tarmac, one of whom was Mr Heath. Tensions arose between the two groups because it appeared to the Tarmac fitters that they might be replaced by Roltec’s. Mr Chell said he mentioned these rising tensions to his supervisor in August 2013 (he did not mention Mr Heath specifically) and they then met with Tarmac to discuss them.
On 4 September 2014, Mr Heath entered the workshop where Mr Chell was working. He put two pellet targets on the bench close to Mr Chell’s right ear and hit them with a hammer. This caused a loud explosion and Mr Chell suffered a perforated eardrum, a noise induced hearing loss in his ear and tinnitus. The pellet targets were brought into work by Mr Heath or a colleague and the hammer was work equipment provided in the workshop.
Mr Heath was dismissed following the incident.
Mr Chell brought a claim for damages for personal injury in the County Court against Tarmac. He argued that:
- Tarmac was vicariously liable for Mr Heath’s actions on the basis that there was a close enough connection between his actions and the work he did for Tarmac.
- Tarmac was negligent in breaching its duty to take steps to prevent a foreseeable risk of injury and in failing to provide a safe working environment.
County Court decision
It was agreed by both parties that Mr Heath’s actions caused Mr Chell’s injury but the County Court dismissed the claim.
Tarmac argued that it was not vicariously liable for Mr Heath’s actions, namely hitting the two pellet targets with a hammer, because he was not acting in the course of his employment. Those actions were not within the field of activities assigned to him by Tarmac. The judge agreed:
- The pellet target was not work equipment.
- It formed no part of Mr Heath’s work to use, let alone hit pellet targets with a hammer at work.
- What Mr Heath did was unconnected to any instruction given to him in connection with his work.
- Mr Heath had no supervisory role in relation to Mr Chell’s work and at the time of the incident he was meant to be working on another job in another part of the site.
- The striking of the pellet targets with a hammer did not in any way advance the purposes of Tarmac.
- In all those circumstances, work merely provided Mr Heath an opportunity for him to carry out the prank, rather than the prank in any sense being within the field of activities that Tarmac had assigned to him.
The judge also found that there was no breach of the duty of care to take reasonable steps to avoid a reasonably foreseeable risk of injury. There was no threat of violence or any suggestion that violence by a Tarmac fitter against a Roltec fitter, including Mr Chell, was at all likely. Indeed, Mr Chell said that the tensions made him feel uncomfortable but he did not say that he felt threatened (and he had not asked to be taken off site). Further, the availability of heavy and dangerous tools does not of itself create a foreseeable risk of injury.
Interestingly, the judge stated:
Horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment. Those acts, by their very nature are acts that the employee must know are outside behaviour that they should engage in at work. I do not therefore accept that there was a failure by Tarmac to prepare a suitable and sufficient risk assessment because of its failure to identify in the risk assessments it has prepared, the risk posed by horseplay, ill-discipline and malice.
The judge noted that the site health and safety procedures included a section on general conduct which said, “No one shall intentionally or recklessly misuse any equipment.” and that nothing more specific than that could reasonably be expected. In addition, it would not be a reasonable step to expect an employer to increase supervision to prevent horseplay, ill-discipline or malice.
High Court decision
Mr Chell appealed to the High Court but his appeal was dismissed in October 2020.
At the time of the appeal, the Supreme Court had given its decision in another vicarious liability case, WM Morrisons Supermarket PLC v Various Claimants. The Supreme Court held that Morrisons was not vicariously liable for deliberate data breaches by a disgruntled employee who was pursuing a personal grudge outside their field of activities for their employer.
Mr Chell then appealed to the Court of Appeal.
Court of Appeal decision
The appeal was dismissed and the County Court judgment upheld.
The issue was whether Mr Heath’s wrongful act was done in the course of his employment. Was it a wrongful act authorised by Tarmac, or a wrongful and unauthorised mode of doing some act authorised by Tarmac? No, said the Court of Appeal. It held that there was an insufficiently close connection between the act which caused the injury and Mr Heath’s work. Accordingly, Tarmac was not vicariously liable.
The cause of Mr Chell’s injury was the explosive pellet target which was not work equipment and the activity of hitting pellet targets was no part of Mr Heath’s work. That activity did not advance Tarmac’s purposes and it was not within the field of activities it authorised. Mr Heath did not have a supervisory role in respect of Mr Chell’s work and the risk created by Mr Heath was not inherent in the business. Tarmac’s business provided the background and context for the risk and created the ground for it but that of itself was insufficient to create the close connection.
Regarding the breach of the duty of care, there was no reasonably foreseeable risk of injury to Mr Chell by the actions of Mr Heath. While horseplay, ill-discipline and malice could provide a mechanism for causing such a reasonably foreseeable risk, that was not the case on these facts.
The tensions between the Tarmac and Roltec fitters had eased in the run-up prior to the incident, there were no threats of violence, Mr Chell had not asked to be taken off the site and he did not refer specifically to Mr Heath as the source of any tension. There was nothing to indicate that Mr Heath would engage in dangerous horseplay and no reasonably foreseeable risk of injury to Mr Chell. The Court of Appeal agreed with the County Court judge that the mere fact that heavy and dangerous tools were available does not of itself create a reasonably foreseeable risk of injury due to misuse of a tool.
The Court of Appeal went on to say that even if a foreseeable risk of injury could be established, on these facts, the only relevant risk was a general one of risk of injury from horseplay. Giving a specific instruction not to engage in horseplay was unrealistic. “Common sense decreed that horseplay was not appropriate at a working site.” 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.
It is hard not to feel sympathy for Mr Chell who sustained an injury at work through no fault of his own.
The case clearly demonstrates the hurdles an individual has to overcome to establish vicarious liability on the part of an employer and the careful analysis the courts undertake to establish whether an act is done “in the course of employment”.
The Court of Appeal said that it was not realistic to give an instruction not to engage in horseplay. It is worth mentioning that employees are expected to carry out their duties with reasonable skill and care. By implication, this means that they should not participate in pranks and horseplay in the workplace.
Finally, it was helpful to Tarmac’s case that its general site rules stated that no one should intentionally or recklessly misuse any equipment (which of course is what Mr Heath did). It would be helpful for employers to review their health and safety polices/site rules to ensure that they include such a provision.
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