Whilst employers can draw some comfort in terms of defending vicarious liability claims from the recent Court of Appeal case of Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7, they ought not be complacent and there are lessons to be learned.
Chell was a fitter employed by a contactor providing services to Tarmac’s business when a Tarmac employee, a Mr Heath, played what Heath thought was a practical joke that resulted in unintended injury (including hearing loss) to Chell.
Specifically, as Chell bent down to pick up some steel, Heath hit with a hammer two pellet targets he had placed close to Chell’s ear, causing a loud explosion.
Chell’s claims in negligence and vicarious liability against Tarmac failed at the County Court and in both appeals to the High Court and the Court of Appeal.
Before the incident, Chell had complained to his supervisor of tensions on site between Tarmac’s fitters and the contractor’s fitters, because, seemingly, the Tarmac fitters feared they might be replaced by the contractor’s fitters.
Despite this, the County Court judge found there was not a sufficient connection between the relationship between Tarmac and Heath as employer/employee and Heath’s striking the pellets with a hammer close to Chell’s ear.
Heath’s actions were not within the field of activities assigned to him by Tarmac: the pellet was not work equipment; Heath acted outside work instructions; he did not intend any injury to Chell (merely to make him jump); he did not supervise Chell; he was supposed to be working elsewhere at the site; and Chell’s complaint to his supervisor of tensions did not mention threats of violence.
Work merely provided an opportunity for Heath to carry out the prank and that was not enough for liability to rest with Tarmac.
Tarmac succeeded here and employers will breathe a sigh of relief, because a contrary decision may have forced employers to have to reconsider their entire risk assessments and likely take unreasonable steps to avoid the risk of injury from horseplay at work.
The lessons are clear. First, complaints about tensions in the workplace should be investigated thoroughly. Second, staff should be made aware of the standard of conduct expected and, third, it should be made clear that horseplay or practical jokes are simply not acceptable and can result in injury.
Alan Lewis is a partner with Constantine Law
