In Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7, the Court of Appeal upheld a County Court decision that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke.
The Court of Appeal has decided that an employer was not negligent or vicariously liable for the actions of an employee whose practical joke caused injury to a contractor at work.
Tarmac engaged Mr Chell at a quarry site. Mr Chell had reported tension between external contractors and employees of Tarmac to his supervisor. Subsequently, an employee of Tarmac played a prank on Mr Chell. He brought explosive pellets into work and hit them with a hammer proximate to Mr Chell’s ear. The explosion resulted in Mr Chell suffering a perforated eardrum, hearing loss and tinnitus.
Chell lost at the County Court, appealed to the High Court and lost and then appealed to the Court of Appeal and lost.
Dismissing the appeal, the court confirmed that there was not a sufficiently close connection between the act which caused the injury and the employee’s work to make it fair, just and reasonable to impose vicarious liability. Among other things, the real cause of Mr Chell’s injuries was the explosive pellet, which was not Tarmac’s equipment and not used in the employee’s work. It could not be said that Tarmac authorised what the employee did, nor was his act an unlawful mode of doing something authorised by Tarmac. The wrongful acts were not done in the course of employment. Regarding breach of duty of care, there was no reasonably foreseeable risk of injury arising from the prank and the reported tension did not suggest potential violence. Even if such a risk of injury had been established, it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from horseplay. Employees were expected to carry out their tasks using reasonable skill and care, and by implication to refrain from horseplay. Common sense decreed that horseplay was inappropriate at a working site.
Source: Practical Law
