A recent case at the High Court, Chell v Tarmac Cement and Lime Ltd  EWHC 2613 (QB), has provided some guidance on the vicarious liability of an employer for injuries caused by a practical joke carried out by an employee. The High Court concluded that the employer was not liable for the actions of the employer engaging in a practical joke as it was outside the scope of the ordinary course of his employment. It would also not be fair and proper to hold the employer liable in the circumstances.
The Claimant was a sub-contractor fitter working on a Tarmac site. He worked alongside Tarmac’s own employees although it was alleged that there were tensions between the contractor and employed fitters. On 4 September 2014, the Claimant was working in the workshop on the site when he bent down to pick up a length of cut steel. Mr Heath, one of the two Tarmac fitters, had brought two “pellet targets” with him on to the site and he put those on a bench close to the Claimant’s right ear. Mr Heath then hit them with a hammer causing a loud explosion. This appears to have been some form of wholly misguided practical joke. The result was no joking matter: the Claimant suffered a perforated right eardrum, noise-induced hearing loss measured at 9-10 decibels and tinnitus. Mr Heath was dismissed from his employment as a result of the incident. As a result, the Claimant brought a claim alleging negligence directly against Tarmac and also against Tarmac as being vicariously liable for the actions of Mr Heath, their employee.
In the action, the Claimant argued that Tarmac should have considered removing Mr Heath from the site or separating the employees of Tarmac or the sub-contractor, Roltech, or should have removed the Claimant from the site or should have disciplined Mr Heath and others. There were allegations of failure to provide appropriate supervision or to provide training, instruction and memoranda to prevent horseplay. By reference to the disclosure of documentation, it was contended by the Claimant, that none of the documents demonstrated adequate policies in place in respect of discipline and supervision or that management took any steps to deal with the tensions between co-workers.
In response, Tarmac denied liability, in particular it denied that the actions of Mr Heath were within the course of his employment, “horseplay” not being part of an individual’s employment. Thus Tarmac denied any liability for Mr Heath’s actions which they 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. Tarmac denied any knowledge of Mr Heath threatening anyone on site. They also denied any knowledge of any tensions escalating on site or of any reports of any concerns about any tensions.
At trial, the Court considered the established two-limb test set out in Lister v Hesley Hall Limited  UKHL 22. In addressing the test to the current circumstances, the Court concluded that the first limb of the test was satisfied; a close relationship between Tarmac and Mr Heath is satisfied, because Mr Heath was Tarmac’s employee at the relevant time.
The second limb required the Court to determine whether there is a sufficient connection between the relationship between Tarmac and Mr Heath as employer/employee and Mr Heath’s act of striking two pellet targets with a hammer close to the Claimant’s ear to make it just that Tarmac should be held responsible for that act? In reaching its conclusion, the following factors were relevant to the Court;
- The pellet target was brought on to the site, either by Mr Heath or one of his colleagues – it 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 the Claimant’s work and at the relevant time 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; and
- In all those circumstances, work merely provided an opportunity to carry out the prank that he played, rather than the prank in any sense being in the field of activities that Tarmac had assigned to Mr Heath.
The decision of the first Court to dismiss the claim was subject to an appeal by the Claimant. The Claimant argued that the Court of first instance was wrong to dismiss the case and that the Defendant was negligent both in its general failure to design and implement a reasonable system to maintain discipline on site, and also in failing to react appropriately to the tensions on. So far as vicarious liability is concerned, the Claimant argued that the learned judge approached the issue from too narrow a perspective and should have found the Defendant vicariously liable on the basis of a number of factors.
The risk assessment, dated 11 January 2013, and ironically naming Mr Heath as one of the assessors, identified a number of hazards including electricity, slipping tripping and falling, hazards associated with swarf and hazards associated with the use of blades in machinery. It also identified a risk from manual handling. The Claimant submitted that the site rules and risk assessment hardly constituted a complete system such as would satisfy a court of law and he referred to the fact that there was no evidence as to how these documents were used. He submitted that employees should know that there is a framework of discipline by which they are bound, with a training regime, and that there should be actual supervision of the workforce such that they understand that they must stick to the rules. He submitted that in the absence of any evidence from the Defendant in respect of the training given to employees and in the absence of any policy in respect of control of the worksite, the learned judge should have drawn adverse inferences against the Defendant which should have led to a finding of breach of duty.
At appeal, the Court concluded that he 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. Furthermore, increased supervision to prevent horseplay, ill-discipline or malice was not a reasonable step to expect this employer to have identified and taken.
In terms of vicarious liability, the Court concluded that, far from the original decision being an error in law, the application of the Lister test was “exemplary, fully and correctly reflecting the authoritative statements from the recent leading cases”.
The case provides some comfort to business that they will not be held liable for horseplay conducted by employees which goes wrong. The decision also provides support for not having to specifically risk assess and put control measures in place for horseplay, ill-discipline or malice by employees unless the employer is aware of such behaviour being present.
If you require health, safety or environmental advice for your business please contact Mark Stouph in Jacksons’ Regulatory Team.
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