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Vicarious liability: decisions this week in the contexts of sexual abuse and ‘horseplay’ at work

  • Legal Development 13 January 2022 13 January 2022
  • Insurance & Reinsurance

This content was written by BLM prior to its merger with Clyde & Co.

Two decisions this week in very different contexts reinforce the legal tests and factual limits of vicarious liability in negligence claims and show the careful application in practice of the two part test that was most recently refined by the Supreme Court in the duo of cases, Barclays Bank and Morrisons, decided on the same day in April 2020.

On 10 January, in TVZ v Manchester City, Johnson J dismissed claims pursued against the Premiership club by young footballers who had been abused decades ago by the football scout Barry Bennell. That his judgment runs to over 570 paragraphs indicates his meticulous analysis of the facts and application of the law.

He concluded that the claims should fail on limitation. However, he examined the question of vicarious liability in any event and held that it would not have been made out on the established facts. My colleagues David Milton and Catherine Davey looked at the decision earlier in the week in these posts on our abuse blog. Further detailed blogs on the judge’s analysis of vicarious liability and quantum will be provided there shortly. The decision is likely to be appealed.

Chell v Tarmac is an appeal which concerned a remarkably crass example of ‘horseplay’ at work. The judgment in the High Court began in memorable fashion: ”The practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong.”

The employees involved were based at the same site but the practical joker, H, was employed by Tarmac and the claimant was employed by another company, R. There was some tension in relationships due a perception that the employees of R might be replacing those of Tarmac. The claimant was injured when H, as some form of prank, used a hammer to detonate two explosive pellet targets placed on a bench close to his (the claimant’s) ear. He suffered a perforated eardrum, hearing loss of around 10dB and tinnitus. H was dismissed by Tarmac.

It was not disputed that the first part of the legal test for establishing vicarious liability, the relationship of the tortfeasor H and the defendant Tarmac, was clearly fulfilled by the employment of the former by the latter. The claim would therefore turn on the second part of the test: the degree of connection of the wrongful act with the defendant’s activity.

As described above, the facts appear to point to the employee’s act being a classic ‘frolic of his own’, ie something unconnected with the principal defendant and taking the incident wholly outside the scope of vicarious liability. Such had been the clear conclusion both in the county court and by Spencer J in the High Court in October 2020. In a brief judgment on 12 January 2022, the Court of Appeal agreed and dismissed the appeal.

The sole judgment was given by Nicola Davies LJ. “On no basis could it be said that [H] was authorised to do what he did by Tarmac. Nor was his act an unlawful mode of doing something authorised by Tarmac. The pellet target was not work equipment, hitting pellet targets was no part of [his] work, such an activity in no way advanced the purposes of Tarmac and that activity was in no sense within the field of activities authorised by Tarmac.” Tarmac could not, as a result, be vicariously liable for the injury.

The claimant had also advanced a second argument, being that Tarmac owned him a direct duty to prevent harm by its employees because of the tension between the two groups on site. The Court accepted such a duty could be established only if injury to the claimant by H was reasonably foreseeable. That was not the case here, with the Court agreeing with the judge’s view that “the mere fact that heavy and dangerous tools were available does not of itself create a reasonably foreseeable risk of injury due to misuse of a tool.”

As with Barclays and Morrisons, these recent decisions do not change the law on vicarious liability. Consequently, it may now be fair to suggest that Lord Phillips’s remark ten years ago in the Catholic Child Welfare Society case (which involved institutional abuse) that “the law on vicarious liability is on the move” is probably no longer accurate. If this aspect of tort law has indeed come to a rest (even if temporarily) perhaps what the recent cases show more than anything else is a high degree of judicial rigour in the application of the relevant two stage test.


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