No – according to the High Court. In Chell v Tarmac Cement and Lime Limited the High Court had to decide if an employer was liable for injuries caused to a contractor by one of its employees who was playing a practical joke.
The Law
An employer will be vicariously liable for the actions of its employees where there is a sufficient connection between the employment and the wrongdoing. This involves a consideration of the following two questions:
- What functions or “field of activities” had been entrusted by the employer to the employee?
- Was there sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable?
Employers can also be directly liable for an injury caused to a third party by an employee under the tort of negligence. Briefly, to succeed with a negligence claim individuals need to demonstrate that:
- the employer owed them a duty of care;
- that it breached that duty; and
- that the individual suffered loss as a result of that breach.
Facts of the case
Mr. Chell was employed as a Site Fitter by Roltech Engineering Limited (“Roltech”). His services, along with others, were contracted out to Tarmac Cement and Lime Limited (“Tarmac”) to assist with the fit out of a site. Tarmac also directly employed its own fitters to work alongside the Roltech fitters. Unfortunately tensions developed between the Tarmac fitters and the Roltech fitters. This culminated in an incident involving Mr Chell and one of Tarmac’s fitters, Mr Heath. Mr Chell was working in the workshop on the site when he bent down to pick up a length of cut steel. Mr Heath had brought two “pellet targets” with him on to the site and he put those on a bench close to Mr Chell’s right ear. Mr Heath then hit them with a hammer causing a loud explosion. According to Mr Heath this was a practical joke. Mr Chell however suffered a perforated right eardrum, noise-induced hearing loss and tinnitus. Mr Heath was dismissed by Tarmac.
Mr Chell issued proceedings in the County Court alleging negligence directly against Tarmac for its alleged breach of its duty of care to Mr Chell and for failing to provide a safe working environment and also a claim that Tarmac were vicariously liable for the actions of Mr Heath. Mr Chell alleged that Tarmac should have considered taking action before the incident took place, for example disciplining or moving Mr Heath or separating the two groups of fitters given the tensions between them.
Decision of the County Court
In relation to the claim for negligence, the Judge was satisfied that Tarmac could not have reasonably foreseen the risk of injury to Mr Chell from a deliberate act of horseplay, ill-discipline or malice and therefore Tarmac was under no duty to take steps to avoid that risk. The Judge also stated that even if Tarmac had been under a duty to take steps to protect Mr Chell from a deliberate act causing him injury, Tarmac had not breached that duty insofar as it had sufficient health and safety measures in place. As such Tarmac was not directly liable for Mr Chell’s injuries.
With regards to vicarious liability, the Judge was satisfied that Mr Heath’s actions in hitting the pellet targets were not within the field of activities assigned to him by Tarmac. In this regard, work merely provided an opportunity to carry out the prank that Mr Heath played, rather than the prank in any sense being within Mr Heath’s work activities. Whist the Judge recognised that there had been tension between the two groups there was no suggestion of any risk of physical violence and as such he was not satisfied that there was a sufficiently close connection between the risk posed by the tensions and Mr Heath’s wrongful act such that Tarmac should be held to be vicariously liable.
Mr Chell appealed the decision to the High Court.
Decision of the High Court
Mr Chell’s appeal was dismissed.
In relation to the issue of vicarious liability, the Court was satisfied that the County Court had correctly applied the law in determining that Tarmac could not be held to be vicariously liable for Mr Heath’s actions. Although the incident did occur in the workplace, Mr Heath’s actions were wholly unconnected with any instruction given by Tarmac and did not further Tarmac’s purpose in any way. He was, as the County Court judge put it, “on a frolic of his own”.
As regards to the allegations of direct breach of duty by Tarmac, the Court was satisfied that Tarmac’s existing 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 manifold ways in which employees could engage in horseplay, ill-discipline or malice and nothing more specific could reasonably be expected. The Court did not consider it reasonable to expect increased supervision from Tarmac to prevent any horseplay. In terms of the specific risk arising from the tensions between the two groups, the Court was satisfied that the information Tarmac was presented with at the time did not merit specific action as there was no foreseeable risk of injury to Mr Chell at the hands of Mr Heath.
Comment
This decision is likely to come as welcome news for employers as it seems unlikely that employers will be held to be vicariously liable where someone has been injured as a result of a prank. As this case demonstrates, there needs to be a sufficiently close connection between the employment relationship and the wrongful act. Just because an incident has taken place at work does not mean an employer will necessarily be vicariously liable; the actions of the employee must have taken place in pursuit of the business of the employer.
