04 March, 2022
The Court of Appeal have upheld the High Court's finding that an employer was not liable for a contractor's injury that was caused by a practical joke played by one of its employees. We reported the High Court's decision in the case of Chell v Tarmac here at the time.
In summary the Court of Appeal found that the employer had not authorised the employee's actions, nor were they an unlawful mode of doing something that was authorised. They decided that there could be no foreseeable risk of injury arising from the practical joke. Even if such risk of injury had been established it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from horseplay. Common sense decreed that horseplay was not appropriate at a working site.
The claimant was an external contractor working as a site fitter at the defendant's site. The defendant employed its own fitters but used external contractors in addition when necessary. Tensions had arisen between the external contractors and the employed fitters who thought that their jobs were at risk. As a practical joke one of the employed fitters brought some pellet targets onto the worksite and placed them next to the claimant then struck them with a hammer. They exploded, as expected, and caused the claimant to suffer a perforated eardrum, hearing loss and tinnitus. The claimant alleged that the employer was vicariously liable for the employee's actions as well as being directly responsible by breaching its duty of care in failing to provide a safe working environment and prevent a foreseeable risk of injury.
The trial judge found that there was not a "sufficiently close connection" between the employer-employee relationship and the wrongful actions of the employee such that the defendant should be held responsible for the act. The actions of the employee were not within the field of activities assigned to him by the employer so there could not be vicarious liability. The Court of Appeal agreed that there could not be vicarious liability saying that the issue was whether the wrongful act was done in the course of employment, such that it was connected with what the employee was authorised to do, even if it was done in an unauthorised way. They found that it could not be said to be authorised, nor was it an unauthorised way of doing something that was authorised. The pellet targets were not work equipment and hitting them was not part of the employee's work.
The employer could also not be found to be directly in breach of their duty to the claimant contractor. The tensions between the internal and external fitters that had been reported did not support any suggestion of threats of violence and there was no indication that the employee would act as he did. It was common sense that horseplay was not appropriate at the site, and it would be unreasonable to expect an employer to have a system that ensured that no horseplay took place.
Defendant employers will be pleased that the Court of Appeal upheld the High Court's decision not to impose liability here. Vicarious liability has been moving in a direction that seemed to be increasing the areas where an employer is held vicariously liable for the actions of their employees, so the thwarting of this attempt on behalf of the claimant to widen it further is welcome.
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