A worker who claimed a building materials company should be held vicariously liable for a practical joke that resulted in hearing loss has been refused permission to take his case to the Supreme Court.
In January, the Court of Appeal found that Tarmac Cement and Lime could not be held liable for its employee’s “horseplay” and had not breached its duty to prevent risk of injury.
The claimant, Mr Chell, claimed he suffered tinnitus and noise-induced hearing loss after one of Tarmac’s employees placed two pallet targets next to his ear and hit them with a hammer.
In Chell v Tarmac Cement and Lime Limited, the Court of Appeal found there was no foreseeable risk of injury from the joke played by the employee, so there was no duty on the employer to minimise that risk.
The judgment added that it would have been unreasonable and unrealistic for an employer to have a system in place to prevent employees from engaging in horseplay.
Chell sought to appeal against the ruling at the Supreme Court, but his application was rejected this week.
Tim Riordan, a personal injury lawyer at CMS, which acted for Tarmac, said: “The Supreme Court’s refusal of permission to appeal further narrows the scope for establishing vicarious liability and clarifies the approach to be taken when assessing an employer’s direct liability for ‘horseplay’ incidents.
“It firmly establishes, that there will be circumstances that amount to unauthorised and unforeseeable acts by individuals for which employers cannot be held liable. The rejection also confirms that foreseeability is still required for workplace actions such as practical jokes that result in harm for an employer to be directly liable, and that general social factors, or the mere possibility of workplace tension, do not create that foreseeability.”