The Court of Appeal has ruled that Tarmac Cement and Lime cannot be held vicariously liable for a practical joke one of its employees played on a contractor, which damaged his hearing.
Mr Chell, who was employed by another company, claimed he suffered tinnitus and noise induced hearing loss in his right ear and after one of Tarmac’s employees, Mr Heath, placed two pellet targets next to his ear and hit them with a hammer, causing a loud explosion, while he was working at Tarmac’s site in Brayston Hill quarry, Shropshire, in 2014.
Chell argued that Tarmac should be held vicariously liable for the actions of its employee, and claimed that it breached its duty to take steps to prevent a foreseeable risk of injury.
In 2019, the High Court dismissed both of Chell’s claims. Chell’s appeal against the decision was heard at the Court of Appeal in November 2021.
Today (12 January) Lady Justice Nicola Davies dismissed the appeal, stating that there was “no reasonably foreseeable risk of injury” that arose from the practical joke played by Mr Heath.
“It is accepted that horseplay, ill-discipline and malice could provide a mechanism for causing such a reasonably foreseeable risk but, in my view, it is not made out on the facts of this case,” the judgment says.
“If it is seriously suggested that there should have been a specific instruction not to engage in horseplay, I regard the same as unrealistic. Common sense decreed that horseplay was not appropriate at a working site. The fitters were employed to carry out their respective tasks using reasonable skill and care, and by implication to refrain from horseplay.”
The judgment says it would have been “unreasonable and unrealistic” to expect an employer to have a system in place to ensure that their employees did not engage in horseplay.
“Further, the general site rules include a section that ‘No one shall intentionally or recklessly misuse any equipment’. This was a warning against exactly what Mr Heath did,” it adds.
Had the Court of Appeal found for the claimant, employers would have been forced to reconsider their entire risk assessments and would have had to take unreasonable measures to avoid risk of injury from horseplay at the workplace” – Tim Riordan, CMS
Tim Riordan, a personal injury partner at law firm CMS, who acted in the case, said: “This was a crucial decision which rejected the notion that employers are responsible for the consequences of employee practical jokes at the workplace.
“Had the Court of Appeal found for the claimant, employers would have been forced to reconsider their entire risk assessments and would have had to take unreasonable measures to avoid risk of injury from horseplay at the workplace.”
Joe Aiston, an employment senior associate at law firm Taylor Wessing said the Court of Apppeal’s decision was “common sense”.
“The acts in question are clearly unrelated to the employee’s assigned responsibilities, a practical joke gone wrong, so the employer is not liable,” he said.
“However, this leaves this injured party, and any other similar future cases, in a potential legal black hole, unable to seek recourse from anyone for injuries genuinely sustained in a workplace. There are also likely to be scenarios where the assessment of whether an employee’s actions were carried out in the course of their employment is more debatable and an employer may be at risk of being held vicariously liable.
“The decision does not, however, mean employers have no duty to protect the health and safety of its employees and third parties who may work on site. All employers should ensure they are fully aware of their health and safety responsibilities and that their policies and procedures are fully up to date.”