Fri 16 Oct 2020

Practical joke falls outside employer’s vicarious liability

"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." - so said Mr Justice Martin Spencer in Chell v Tarmac Cement and Lime Limited when upholding the decision of the County Court that Tarmac were not vicariously liable when such a joke backfired.  

The joke in question involved an employee of Tarmac, Anthony Heath, bringing two "pellet targets" onto the work site, putting them close to the ear of a contractor working at the site (Gavin Chell), and hitting them with a hammer causing an explosion that perforated Mr Chell's eardrum and caused noise induced hearing loss and tinnitus.  Mr Heath was, unsurprisingly, dismissed by Tarmac.  Mr Chell then brought proceedings alleging breach of duty of care directly against Tarmac and also that Tarmac was vicariously liable for the actions of Mr Heath. 

Mr Chell's claim included allegations that he had raised the issue of rising tensions between Tarmac employees and contractors with his supervisor, that the employees should have been separated before the practical joke was carried out, that Tarmac had failed to provide adequate supervision or to provide training, instruction and memoranda to prevent horseplay, that policies were inadequate and that management failed to take appropriate steps to manage the tension between workers.  Tarmac on the other hand said Mr Heath's actions were wholly outside the scope of any reasonable foreseeability, risk assessment or health and safety guidelines.  In other words, the carrying out of a practical joke was not within the course of Mr Heath's employment and the business was not vicariously liable for the consequences of it.

At first instance the Judge concluded that Tarmac was not vicariously liable for the actions of Mr Heath.  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".  The pellets were not work equipment, hitting the pellets formed no part of Mr Heath's job, his actions were unconnected to any instruction given to him and his actions did not advance the purposes of his employer - indeed he should have been working on another job on another part of the site at the time the incident took place.  What is more, actions such as that carried out by Mr Heath were, according to the Judge, "acts that the employee must know are outside behaviour that they should engage in at work".

Mr Chell appealed arguing that the County Court Judge had failed to give adequate consideration to the “close connection”.  When applying that test the court must ask what field of activities has been entrusted by the employer to the employee, and whether there was a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right that the employer be held liable. 

In the High Court Mr Justice Spencer clearly took a dim view of Mr Heath and his practical joke, quoting Mark Twain's view that grown-up persons who indulge in practical jokes "have lived narrow, obscure, and ignorant lives….".  He also expressed sympathy for Mr Chell.  However, he found that the County Court Judge had applied the law appropriately – Mr Heath was acting in a way unconnected to any instruction given to him in connection with his work and Tarmac were not vicariously liable for his actions. 

This case follows on from a number of cases – including WM Morrison Supermarkets plc v Various Claimants – which confirm that vicarious liability will not usually arise unless the employee’s actions were furthering the business of the employer.  While this will leave some claimants without any worthwhile remedy for a wrong that has been carried out in the workplace it places a reasonable limit on liabilities that employers are expected to foresee and guard against.  And to quote Mr Justice Spencer one last time, “sympathy cannot found a sound legal basis for a finding of liability”.


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