Is an employer vicariously liable for the practical jokes of their employees?

The Court of Appeal in the case of Chell v Tarmac Cement and Lime Limited (“the Respondent”) has recently considered whether an employer was vicariously liable for the horseplay of their employees when this resulted in injuries to Mr Chell (“the Claimant”).

Background

The Claimant was employed as a site fitter for Roltec Engineering Limited (“Roltec”). He had worked on a site which was operated and controlled by the Respondent and was carrying out services on their behalf. The Claimant was bending down to pick up a length of cut steel. One of the Respondent’s employees decided to put two pellet gun targets on the bench which was near to the Claimant’s right ear. The employee struck the targets with a hammer which caused a large explosion. The Claimant suffered from noise induced hearing loss in his right ear and tinnitus.

The Claimant had worked alongside the Respondent’s employees, and it was alleged by the Claimant that there were tensions between the fitters from the Respondent and the fitters from Roltec due to the perception that they were offering competing labour. It was also alleged that the issue of these tensions was raised with the Respondent but that the Claimant was told to “stick it out” for a few more weeks. The Claimant alleged that the Respondent was vicariously liable for the actions of their employee and that they were negligent in breaching their duty to take steps to prevent a reasonably foreseeable risk of injury. The claim was rejected at first instance and by the High Court on appeal. The Claimant appealed to the Court of Appeal.

The Law

Vicarious liability was traditionally distilled into a two-limbed test:

  1. Was there a close relationship between the defendant and the primary wrongdoer so as to give rise to vicarious liability? and
  2. Whether there is a sufficient connection between the aforementioned relationship and the wrongdoer’s actions to make it just to impose liability on the defendant? (in the employment context this is often expressed as whether the wrongdoer was acting in the ordinary course of their employment).

However, the scope of vicarious liability has seemingly expanded in recent years and in the employment context (such as Mohamud v Morrisons [2016] AC 677) appeared to extend to instances where the employer’s business exposed a prospective claimant to increased risk (in this case where an employee in asking someone to leave a petrol station subjected said person to a serious physical assault).

At issue in respect of the negligence action was whether the Respondent could have reasonably foreseen the risk of injury from horseplay in the workplace.

Decision

The Court of Appeal rejected the appeal. The Court confirmed that an employer would be vicariously liable for one of their employee’s unauthorised acts where that act is so connected to what the employee is authorised to do so as to be considered a mode of doing that act. This was not made out on the facts as there were various factors which indicated that there was not such a connection including that this act of horseplay was not part of the employee’s work, it was not an unlawful way of doing something authorised by the employer and the act in no way advanced the employer’s aims. Therefore, the Respondent was not vicariously liable.

The Court also agreed with the lower courts’ decision on the negligence action in that it was concluded that the risk of harm to the Claimant was not foreseeable. The Court did say that horseplay could potentially create a reasonably foreseeable risk which could give rise to a successful negligence claim, but that was not the case in this instance. While there were reported tensions, these did not indicate any violence and while the employee had a disciplinary history this did not extend to behaviour which suggested the potential for this dangerous practical joke. The Court added that even if there was a reasonably foreseeable risk, an employer would not be expected to have a system in place to prevent horseplay.

Comment

The decision offers welcome clarification on the extent of vicarious liability for employers and the steps employers are expected to take to provide a safe workplace. The employer in this case was certainly assisted by having policies in place, but it is a reminder that examples of workplace tensions should be carefully considered by employers as the potential for a successful claim remained if the facts were different.

Case reference: Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7

*This article is for information purposes only. You should seek specific legal advice on any legal issues.*

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