The Court of Appeal has recently ruled that an employer was not liable for a practical joke carried out by one of its employees on a contractor, which unfortunately damaged the contractor’s hearing.
Chell v Tarmac Cement And Lime Ltd [2022] EWCA Civ 7 (12 January 2022)
Case background
Mr Chell, a contractor, employed by another company (Roltech), claimed he suffered tinnitus and noise hearing loss in his right ear after one of Tarmac’s employees, Mr Heath, placed two pallet targets next to his ear and hit them with a hammer, causing a loud explosion. This happened while he was working at Tarmac’s site in 2014. Mr Heath was dismissed by Tarmac following the incident.
Mr Chell argued that Tarmac should be held accountable for the actions of its employee, and claimed that it breached the company’s duty to take steps to prevent a foreseeable risk of injury.
Tarmac argued that the actions of its employees were not within the course of his employment. It claimed that it could not be held liable for the actions of Mr Heath which it said were outside the scope of any reasonable foreseeability, risk assessment, HSE guidelines or his employment. Further, Tarmac claimed that Mr Heath’s actions were without any sufficient connection to his employment which would make them liable.
County Court and High Court rulings
The County Court dismissed the claim but Mr Chell appealed and the case went to the High Court.
The High Court also dismissed both of Mr Chell’s arguments. It upheld the County Court’s application of the law that Tarmac was not vicariously liable for the actions of Mr Heath. The High Court endorsed the County Court’s rationale that “horseplay, ill-discipline and malice are not matters that [I] would expect to be included within a risk assessment”. It found that Tarmac, as an employer, had taken its health and safety responsibilities seriously and that an employer could not be expected to implement a policy or site rules which descended to the level of playing of practical jokes or horseplay.
Based upon the evidence provided in the case, the County Court was entitled to find that:
- The employer’s existing health and safety procedures, which included provisions on general conduct stated that ‘no-one shall intentionally or recklessly misuse any equipment’, were sufficient given the various ways in which employees could get involved in horseplay, ill-discipline or malice and that nothing more specific could be expected of the employer, and
- It was not a reasonable expectation of Tarmac for them, as an employer, to provide increased supervision to prevent horseplay, ill-discipline or malice in the workplace.
Mr Chell further appealed the decision and it went to the Court of Appeal.
Court of Appeal decision
However, once more, Mr Chell’s claim was dismissed, with the Court of Appeal finding that Tarmac was not vicariously liable for the actions of Mr Heath.
Lady Justice Nicola Davies stated that:
“the risk created by this employee was not inherent in the business” and “on no basis could it be said that [the employee] was authorised to do what he did by Tarmac”.
Additionally, the Court of Appeal ruled that:
“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”.
Comment
This decision will give comfort to employers as if the actions of an employee are not connected to the activities they are employed to do, then it means it is unlikely the employer will be found liable for any harm suffered as a result of them.
However, this decision should not be seen as lessening the employer’s duty of care to protect the health and safety of its employees, contractors, and any other third parties who may visit the workplace. It’s vital that all employers are fully aware of their health and safety responsibilities and ensure their procedures are fully up to date.
How can Nelsons help?
Laura Kearsley is a Partner in our expert Employment Law team.
For further information on the subjects discussed in this article or any related topics, please contact Laura or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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