Vicarious liability of employers has been a hot topic in the last couple of years with high profile cases involving large employers like Morrisons supermarkets and Barclays Bank. The case of Chell v Tarmac Cement and Lime Limited ("TCLL"), which concerns liability for a practical joke in the workplace, reached the Court of Appeal at the end of last year. Briefly, a fitter employed by TCLL thought it would be amusing to hammer pellet gun targets he had placed beside the ear of a contractor, the claimant, who was working on the same site. The explosion that followed caused the contractor to suffer noise induced hearing loss and tinnitus. This had occurred against a background of poor relations between TCLL's employees and another group of contractors, of which the claimant was one.
The claimant brought a claim before the County Court in England that TCLL were both vicariously liable for their employee's negligence, and in breach of duty to take steps to prevent a foreseeable risk of injury to the fitter. The steps it was suggested they should have taken included carrying out an adequate risk assessment and implementing effective measures against the risk of injury from horseplay, ill-discipline or malice. The claim was unsuccessful and an appeal to the High Court was dismissed - for more details of that judgment see Practical joke falls outside employer’s vicarious liability.
The Court of Appeal has now dismissed the claimant's further appeal, upholding the findings of the lower courts. The prank was not a wrongful act authorised by the employer nor a wrongful way of carrying out an authorised act. The pellet gun targets were not work equipment, nor did using them form any part of the fitter's work. There was no abuse of supervisory power and while there was bad feeling between TCLL employees and contractors it was not such as to indicate any threat to the contractors. The risk created here was not one that was inherent to the business. The actions of the fitter did not advance the purposes of TCLL in any way, and the fact the workplace provided an opportunity for the prank to take place was not enough to create vicarious liability. Key to the decision making process was the fact that there had been no intention to cause injury, resulting in a finding that the prankster was "on a frolic of his own".
The Court of Appeal held that the actions of the employee had not been reasonably foreseeable. The Court held that "The fitters were employed to carry out their respective tasks using reasonable skill and care, and by implication to refrain from horseplay. It would be unreasonable and unrealistic to expect an employer to have in place a system to ensure that their employees did not engage in horseplay."
Although leaving the claimant without any remedy for his injury, this judgment will come as a relief to employers and also their insurers. If employers were to be liable for pranks that simply happen to occur in the workplace it would make them responsible for actions that they could not reasonably foresee and therefore risk assess. That said, had the rift between the employees of TCLL and the contractors been more significant, or had the prankster had utilised work equipment for his joke, the outcome may have been different - each case will turn on its own facts.
