In a claim involving vicarious liability, claimants must show that the wrongful acts of an employee were so closely connected with their employment that the employer was liable for them. In Chell v Tarmac Cement and Lime Ltd, the Court of Appeal held that the company was not liable for the actions of an employee playing a practical joke.
Basic facts
Mr Chell was employed by a subcontractor providing fitting services to Tarmac, working alongside fitters who were employed directly by the company.
There were tensions between the Tarmac fitters and those employed by the subcontractor. One of them, Mr Heath, decided to play a practical joke on Mr Chell by putting two pellet targets on the bench close to his right ear and hitting them with a hammer to cause a loud explosion. Mr Chell suffered noise induced hearing loss as well as tinnitus.
He brought a claim, arguing that Tarmac was vicariously liable for Mr Heath’s actions.
Decision of High Court
The judge found that Tarmac was not liable as there was no sense in which it could be said that it was part of Mr Heath's work to use, let alone hit, pellet targets (which he himself had brought onto the site) with a hammer. His actions were, therefore, completely unconnected to any instruction given to him in relation to his work.
Although there were tensions between the two sets of fitters which Tarmac knew about, this had not been sufficiently serious to suggest a risk of physical confrontation. The connection between the risk and the wrongful act was not therefore close enough to make Tarmac liable.
Finally, although Tarmac had a duty of care to take reasonable steps to avoid Mr Chell being injured, that duty had not arisen in this case. It was accepted that Mr Heath was not easy to work with, but he was not known to be volatile, and Tarmac could not have reasonably foreseen the possibility of him causing injury to Mr Chell.
Decision of Court of Appeal
Mr Chell’s appeal was dismissed by the Court of Appeal which held that the question to be answered was whether Mr Heath's wrongful act was done in the course of his employment.
In the case of Morrisons v Various Claimants (involving a malicious data breach by one of Morrisons' former employees), the Supreme Court held that “the wrongful conduct must be so closely connected with acts the employee was authorised to do” that it can be viewed as done in the “ordinary course” of their employment.
In this case, the cause of Mr Chell’s injuries was the explosive pellet target. Not only was Mr Heath not required to use such pellets in the course of his work, but he had also brought them onto the site himself. The company could not therefore be said to be vicariously liable for his actions as he was not acting in the course of his employment.
In terms of Tarmac’s duty of care for Mr Chell, the Court of Appeal held that the tensions reported to the company did not support any suggestion of threats of violence still less actual violence. As such it was not reasonably foreseeable that Mr Chell might be injured as a result of Mr Heath’s actions.
Even if a foreseeable risk could be established, the only relevant one would be a general risk of injury from horseplay which would be an unreasonable and unrealistic risk for Tarmac to anticipate. In any event, the company had a sign warning employees from “intentionally or recklessly” misusing equipment, which is precisely what Mr Heath had done.
Comment
Vicarious liability is the means by which an employer is held liable for their employee’s wrongdoing. Rules and tests have evolved over the years to guide judges as to when vicarious liability should be imposed. Clearly it is not always appropriate.
Here the judge applied those rules to a specific set of facts and as this judgment is fact specific, it is not therefore a precedent about employer liability for practical jokes. This time the employer was not liable for a practical joke which went wrong, but if the circumstances were different, they might have been. Indeed, the original finding was that if the workplace tensions had reached the point of physical confrontation, then the decision could easily have gone the other way.
Cases like these are fact-sensitive and the margins can be very fine indeed. Of course, Mr Chell could still have sued Mr Heath directly, but employers are usually a better target as they are more likely to be able to satisfy any judgment. The risk for Mr Chell was that Mr Heath didn’t have the funds to pay any damages awarded.