In Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7 the Court of Appeal upheld a decision that an employer was not negligent or vicariously liable for an employee's practical joke that caused a contractor personal injury.

Background

Mr Chell worked as a contractor at a site that was managed and operated by Tarmac Cement and Lime Limited (Tarmac). One of Tarmac's employees, Mr Heath, decided to play a practical joke on Mr Chell. When Mr Chell bent down to pick up a piece of cut steel, Mr Heath placed two explosive pellets on a bench in close proximity to Mr Chell's ear. Mr Heath then hit the pellets with a hammer, triggering a loud explosion, and causing Mr Chell to suffer a perforated eardrum, noise induced hearing loss and tinnitus. 

Mr Chell argued that Tarmac was vicariously liable for the actions of Mr Heath and negligently breached their duty of care by not taking steps to prevent a foreseeable risk of injury. The County Court and High Court dismissed both claims. Mr Chell then appealed. 

Legal Background

The test of whether an employer can be held to be vicariously liability is two-fold:

1. there must be a relationship between the primary wrongdoer and the person (or company) alleged to be liable, and this relationship has to be capable of giving rise to vicarious liability; and

2. there has to be a sufficiently close connection between the wrongful conduct and the employment, so it would be fair, just and reasonable to hold the employer vicariously liable as the employee was acting in the ordinary course of their employment.

Decision

The Court of Appeal dismissed the appeal. 

They held that Mr Heath's actions were not done in the course of his employment. There was not a sufficiently close connection between Mr Heath's actions and his work duties. Tarmac did not authorise his actions. The explosive pellets were not Tarmac's equipment nor were they used in the course of Mr Heath's employment. It was, therefore, not fair, just and reasonable to impose vicarious liability upon Tarmac. 

The Court of Appeal held that the risk of injury was not reasonably foreseeable and Tarmac did not breach its duty of care. 

Key Takeaways

• There is an expectation that employees should conduct their work with reasonable skill and care. 
• Employees should be sensible and refrain from playing practical jokes, especially where there could be any element of harm towards others. 
• Employers should be mindful of their duty of care and take documented steps where necessary to avoid risk.
• It is unreasonable and unrealistic to expect employers to have a system in place to ensure employees do not engage in any practical jokes. However, it is worth remembering that this case does not remove the risk of liability falling upon an employer for acts done by employees.  

This can be a tricky area and if you need any advice on this topic please contact Kelly Brown.