Chell v Tarmac Cement and Lime Ltd  EWHC 2613
In this case the High Court held that an employer was not negligent or vicariously liable for the actions of an employee whose practical joke unintentionally caused injury to a contractor in the workplace. The incident was outside the scope of the ordinary course of employment and it would not be fair to hold the employer liable for such an act.
The Claimant was employed as a site fitter by Roltech Engineering Limited ("Roltech") and his services were contracted out to the Defendant ("Tarmac"). Tensions allegedly arose between the Tarmac fitters and Roltech fitters. The Claimant bent down to pick up a length of cut steel whilst working in the workshop. Mr Heath, one of the Tarmac fitters, had placed pellet targets close to the Claimant's right ear and then, by way of practical joke hit them with a hammer, causing a loud explosion. The Claimant suffered a perforated right eardrum, noise-induced hearing loss and tinnitus. He brought a claim against Tarmac, alleging that as Mr Heath’s employer, it was vicariously liable for the injury caused by Mr Heath’s actions.
The High Court confirmed that one of the key requirements of vicarious liability in the employment context was that the wrongful conduct must be closely connected to the activities of the employee. This was not satisfied, as Mr Heath’s conduct was unconnected to any instruction given to him in the ordinary course of his employment and his actions did not further the objectives of the employer.
The High Court also confirmed that even if (which was not the case here) the risk of injury to the Claimant had been reasonably foreseeable, so as to give rise to a duty of care on Tarmac’s part to take reasonable steps to prevent it, Tarmac did not breach its duty of care to the Claimant on the basis that:
- existing site health and safety procedures, which included a section on general conduct stating "no-one shall intentionally or recklessly misuse any equipment" were sufficient given the different ways in which employees could engage in horseplay, ill-discipline or malice, and nothing more specific could reasonably be expected; and
- increased supervision to prevent horseplay, ill-discipline or malice was not a reasonable step to expect this employer to have identified and taken.
Tarmac had extensive General Site Rules which showed the organisation took health and safety matters seriously. The High Court held it would be expecting too much of an employer to devise and implement a policy or site rules which descend to the level of horseplay or the playing of practical jokes. While the claimant had previously made the defendant aware of tensions between the two sets of employees, this did not create a foreseeable risk of injury to the claimant at the time.
The question of whether the acts or omissions of employees are done “in the ordinary course of employment” (and therefore whether the employer can be held vicariously liable for them) is a highly fact-specific one. This case is a helpful reminder that not everything that an employee does at work is done in the course of employment.