The Court of Appeal has handed down its decision on whether an employer was vicariously liable for the injury caused to a contractor as a result of a practical joke carried out by one of its employees.
Chell v Tarmac Cement and Lime Ltd  EWCA Civ 7
Mr Chell was a site fitter, contracted out to work for Tarmac at one of its sites. Tarmac also directly employed its own fitters. Mr Chell reported to his supervisor that tensions had arisen between the contractors and Tarmac’s employees. A few weeks later, one of the Tarmac employees played a prank on Mr Chell, by putting target pellets on a workbench and striking them with a hammer. This resulted in Mr Chell sustaining a perforated eardrum, hearing loss and tinnitus. He brought a claim for personal injury against Tarmac, on the grounds that the company was vicariously liable for the acts of its employee, as well as breaching its own duty of care and failing to provide a safe working environment. His claim was rejected by the county court, and also on appeal to the High Court. Mr Chell appealed to the Court of Appeal.
Court of Appeal decision
The Court of Appeal has upheld the decision of the county court that the employer was not liable for the actions of its employee. There was not a sufficiently close connection between the act which resulted in the injury and the employee’s work to make it fair, just and reasonable to impose vicarious liability on Tarmac. The cause of the injury sustained by Mr Chell was the explosive pellet, which was not equipment used by the employee in the course of his duties and the equipment did not belong to the employer.
In relation to the employer’s alleged breach of duty of care, there was no foreseeable risk of injury arising from the prank, and Mr Chell’s report concerning the tensions between the workforce was not suggestive of any threat of violence. The court held that it was unreasonable and unrealistic to expect an employer to have a system in place to ensure that employees refrained from horseplay. Employees could be expected to carry out their tasks using reasonable skill and care, using their common sense and by implication refraining from horseplay. In addition, the general site rules stated expressly that “no one shall intentionally or recklessly misuse any equipment”.
Consequences of this decision
This decision is helpful for employers in confirming that vicarious liability is limited to acts carried out in connection with an employee’s work activities, and which serve to advance the purpose of the employer. This follows the decision of the Supreme Court in 2020 in the case of Wm Morrison Supermarkets plc v Various Claimants, where the employer was held not to be liable for an unauthorised disclosure of personal data by a rogue employee. When an employee has engaged in reckless behaviour that is entirely unconnected with his or her duties and without the knowledge of the employer, it will be difficult to establish an employer’s vicarious liability even if the activities are conducted on work premises and during working hours.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2022.