An employer was not vicariously liable for the actions of an employee who had played a 'practical joke' which injured a colleague. The incident was unconnected to any instruction given by the employer to the employee in relation to his work and could not be said to be within the field of activities assigned to the employee by his employer.
Chell v Tarmac Cement and Lime Ltd  EWHC 2613
The Claimant was employed by Roltech as a site fitter. His services had been contracted out to the Defendant, who also employed their own fitters, to work on a site in Brayston Hill. The Claimant alleged there had been increased tensions between the Roltech fitters and those employed by the Defendant, including Mr Heath.
Mr Heath had recently returned to site following an unrelated suspension. The Claimant stated he had complained to his supervisor mid-August 2014, and had asked to be taken off site but was asked to stay for a few more weeks.
On 4 September 2014, whilst carrying out some work, the Claimant bent down to pick up a length of steel. Mr Heath placed two pellet targets he had brought to the site on a bench close the Claimant's ear, then used a hammer to hit them. The resulting explosion caused the Claimant to suffer a perforated right eardrum, noise induced hearing loss and tinnitus.
The Claimant issued a claim alleging that the Defendant owed him a direct duty of care - which had been breached - and that the Defendant was vicariously liable for Mr Heath’s actions. The Claimant alleged the Defendant should have considered disciplining or moving Mr Heath from the site, removing the Claimant himself, or separated the two sets of employees. He further alleged there was no appropriate supervision and training had not been provided.
The Defendant denied liability submitting that 'horseplay' was not part of Mr Heath's employment, and Mr Heath's actions were "of his own volition without any sufficient connection to his employment to make Tarmac liable". They also denied knowledge of any rising tension.
First instance decision
At first instance the claim was dismissed.
His Honour Judge Rawlings found that in respect of the alleged direct duty to the Claimant by Tarmac, “there was not a reasonably foreseeable risk of injury from a deliberate act on the part of Mr Heath or any Tarmac employee to the Claimant such as to give rise to the duty to take reasonable steps to avoid that risk”.
HHJ Rawlings also found the Defendant was not vicariously liable, as the workplace had "merely provided an opportunity to carry out the prank that he played, rather than the prank in any sense being in the field of activities that Tarmac had assigned to Mr Heath".
It was held that whilst tensions may have been created by the Defendant in employing Roltech workers, this was not enough to "create a sufficiently close connection between the relationship of employer/employee between Tarmac and Mr Heath and Mr Heath's wrongful act of hitting the two pellet targets with a hammer".
The Claimant appealed.
On appeal, it was submitted that, in respect of the alleged negligence, the Defendant had failed to maintain discipline on site and for failing to react appropriately to the tensions.
The Claimant accepted that the correct two-stage test for assessing vicarious liability had been applied, but that it had been applied too narrowly. It was alleged that HHJ Rawlings failed to give adequate consideration to the "close connection" test applied in sexual abuse cases. The Claimant submitted that the following factors should have been used to impose vicarious liability:
The first instance decision was upheld, and the appeal dismissed.
Mr Justice Spencer held that the trial judge had "correctly and appropriately adopted the two-stage test" for vicarious liability. Mr Justice Spencer noted the trial judge did not have the benefit of the Supreme Court decision in Morrisons v Various at the time of judgment, but had he done so, this "would only have been fortified in the conclusions to which he had come and in his approach to this issue".
The trial judge had rejected that Mr Heath was purporting to lighten the mood and the fact that he used his employer's hammer was "rightly regarded as wholly incidental to the act in question".
Regarding the alleged breach of direct duty by the Defendant, the High Court agreed with the trial judge that "horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment". Increased supervision to prevent horseplay was not a reasonable step for the Defendant to have identified and taken.
In conclusion, the trial judge "was right as a matter of law in relation to the issue of vicarious liability" and his "conclusions in relation to the allegations of direct breach of duty on the part of Tarmac were ones to which he was entitled to come on the basis of his findings of fact".
What can we learn?