No laughing matter – will an employer be vicariously liable for a contractor’s injury arising out of an employee’s practical joke at the workplace?

No laughing matter – will an employer be vicariously liable for a contractor’s injury arising out of an employee’s practical joke at the workplace?

[Read time: 4 minutes]

Speed Read: The High Court held that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s “wholly misguided” practical joke.

Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613 (QB)

The Facts

The Claimant was employed by Roltech Engineering Limited as a site fitter. From December 2013, his services were contracted by Roltech to the Defendant. The Defendant also directly employed their own site fitters (Defendant’s Fitters), who worked alongside the Claimant at the site. The Claimant had previously raised issues with the Defendant about tensions between him and the Defendant’s Fitters, but alleged that he was advised to “stick it out for a few more weeks” by the Defendant.

In September 2014, the Claimant was working and bent down to pick up a length of cut steel. One of the Defendant’s Fitters had brought two “pellet targets” with him on to the site and he put them on a bench close to the Claimant’s right ear. He then hit them with a hammer causing a loud explosion as a “wholly misguided” practical joke. The Claimant suffered a perforated right eardrum, noise-induced hearing loss measured at 9-10 decibels and tinnitus.

The Claimant brought a claim, alleging that the Defendant had been negligent and was vicariously liable for the actions of the employee.

When will an employer be vicariously liable?

The case of Lister v Hesley Hall Ltd [2001] set out the original two stage test to consider when determining if an employer is vicariously liable for an employee’s actions:

  1. Is there a relationship between the primary wrongdoer and the person alleged to be liable which is capable of giving rise to vicarious liability?
  2. Is the wrongful conduct so closely connected with the acts the primary wrongdoer was authorised to do (or the role or “field of activities” entrusted to the wrongdoer) that, for the purposes of the liability of the employer, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of its employment (the ‘sufficient connection’ test).

It is widely accepted that employment relationships can give rise to vicarious liability. However, the sufficient connection element of the test is usually the most contested area between the parties. It requires (i) identification of the wrongdoer’s job or field of activities, or what the employee was authorised to do; and (ii) an evaluation of whether there is a sufficient connection. The Court must rely on this to determine whether the tort is so closely connected with the employment, that is with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible.

The Supreme Court recently consider and affirmed the Lister test in Morrison Supermarkets Plc v Various Claimants [2020], whereby a disgruntled employee misused a significant amount of personal data about employees to which he had been afforded access for the purposes of supplying it to an external auditor. The wrongful conduct had to be so closely connected with acts the employee had been authorised to do that, for the purposes of the liability of the employer to third parties, it might fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment. The Supreme Court emphasised that the employee was acting for personal reasons and not misguidedly seeking to pursue the employer’s interests. As a result, Morrisons was not vicariously liable.

What was held?

At the first instance in the County Court, it was held that the facts did not support a finding that the employee’s actions had been within the field of activities assigned to him by his employer. As such, his actions were not sufficiently connected to his employment.

Further, the allegation of negligence required the risk of injury to have been foreseeable. The judge found that there had been no reasonably foreseeable risk of injury from a deliberate act on the part of the employee to the Claimant, such as to give rise to the duty to take reasonable steps to avoid that risk. The situation, as presented to the Defendant by the Claimant, had not merited action or given the Defendant any reason to foresee risk of injury to the Claimant at the hands of the Defendant’s Fitters. It was noted that horseplay, ill-discipline and malice are not matters that would be expected to appear within a risk assessment. The existing site health and safety procedures, which included a section on general conduct stating ‘no-one shall intentionally or recklessly misuse any equipment’ was sufficient. Accordingly, the claim was dismissed. The Claimant appealed to the High Court.

On appeal, the High Court held that the County Court had applied the law on vicarious liability correctly. In addition, it was expecting too much of an employer to devise and implement a policy or site rules which descended to the level of horseplay or the playing of practical jokes. On the evidence, the judge had been wholly entitled to come to the conclusion that he had and the appeal was dismissed.

What can employers take from this?

The case clarifies that, where an employee causes injury to another person due to a practical joke, it is unlikely that an employer will be found vicariously liable. It is difficult to see in what circumstances this type of act would satisfy the ‘sufficient connection’ test.

It may be surprising that the employer was not found negligent despite the fact that the Claimant approached them in advance of the incident and voiced concerns. However, it is key that this approach did not give the employer any reason to foresee risk of injury. If this had been the case, the case may have been decided differently. In any event, it is always important for an employer to maintain appropriate risk assessments and adopt adequate policies and procedures that suit the nature of work being carried out. Where this is done, it will be much easier to demonstrate to a Judge that the employer has upheld its duty of care to its workers in this respect. Better still, the employer should ensure that such risk assessments and policies are brought to the attention of their employees.