In the recent case of Chell v. Tarmac Cement and Lime Ltd., the Court of Appeal upheld the decisions of the County Court and High Court and found that an employer was not vicariously liable for personal injury sustained by a contractor as a result of a practical joke carried out by an employer’s employee during the course of his employment. The judgment follows the 2020 Supreme court decision in the case of Wm Morrison Supermarkets plc v Various Claimants, in which it was held that a supermarket was not vicariously liable for unauthorised breaches of the Data Protection Act 1998 committed by an employee.

 

The appellant was employed as a contractor at the respondent’s quarry site. Prior to incident, the appellant had reported issues to the respondent concerning tensions between contractors and employees of the company. On 4 September 2014, one of the respondent’s employees played a prank and struck an explosive pellet target close to the appellant. The pellet then exploded and caused the appellant to suffer a perforated eardrum, hearing loss and tinnitus. The appellant brought a claim for personal injuries against the respondent on the grounds that the respondent was vicariously liable for its employee’s actions and directly responsible in negligence for his injuries as well as breaching the duty of care owed and failing to provide a safe working environment.

 

The Court of Appeal ruled that there was not a sufficient close connection between the practical joke carried out by the respondent’s employee which caused the injury and the employee’s work to make it reasonable to impose vicarious liability on the respondent. The court ruled that the equipment which caused injury was not owned by the respondent and was not used by the employee during the course of his employment. A necessary close connection was therefore not established.

 

With regards to the alleged breach of duty, the court found that there was no reasonably foreseeable risk of injury to the contractor by the wrongful act. The fact tools were available onsite did not create a reasonably foreseeable risk of injury due to misuse of these tools. The court held that it was unreasonable and unrealistic to expect an employer to have a system in place to ensure that employees refrained from horseplay. The court ruled that when carrying out tasks, employees ought to do so with reasonable skill and care. The general site rules also stated that “no one shall intentionally or recklessly misuse any equipment”.

 

The Court of Appeal’s decision in Chell v. Tarmac Cement and Lime Ltd., is a positive outcome for employers and indicates that an employer will only be vicariously liable for the actions of their employee when the wrongful conduct is closely connected with acts the employee was authorised to do. It is clear from this decision and in the decision in Wm Morrison Supermarkets plc v Various Claimants that the courts are now taking a robust approach when determining whether specific acts are or are not in the course of an employee’s employment.

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.