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High Court rules that an employer was not liable for its employee injuring a contractor during a practical joke that backfired

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High Court rules that an employer was not liable for its employee injuring a contractor during a practical joke that backfired

High Court rules that an employer was not liable for its employee injuring a contractor during a practical joke that backfired

On the day of the incident, Andrew Chell (a contractor hired to provide site-fitting services to Tarmac Cement and Lime Ltd (‘Tarmac’)) was working in one of Tarmac’s workshops. Andrew Heath (a Tarmac employee) had brought two ‘pellet targets’ onto the site and placed those on a bench close to Mr Chell’s right ear. Mr Heath then hit them with a hammer causing a loud explosion. Although this appeared to have been a practical joke, the result was no joking matter: Mr Chell suffered a perforated right ear drum, noise-induced hearing loss and tinnitus. Mr Heath was dismissed by Tarmac as a result of this horseplay.

Mr Chell brought a negligence and vicarious liability claim against Tarmac as a result of this incident. His Honour Judge Rawlings held that Tarmac should not be liable. Amongst others, he commented that:

  • the target pellets were brought onto the site and Mr Heath’s actions were unconnected to any instruction given by Tarmac in connection with his work.

  • 'Work merely provided an opportunity to carry out the prank’, rather than the prank being part of his work assignment.

  • ‘Horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment. Those acts, by their very nature, are acts that the employee must know are outside behaviour that they should engage in at work’.
Dissatisfied with the judge’s decision, Mr Chell brought an appeal in the High Court.

Following a hearing held in July 2020, Mr Justice Martin Spencer upheld Rawlings’ original decision concluding that ‘it is expecting too much of an employer to devise and implement a policy or site rules which descend to the level of horseplay or the playing of practical jokes’.

Whilst the judge was right to conclude that the ‘horseplay’ was no part of any instruction given to Mr Heath by Tarmac (and thus Tarmac were not vicariously liable for the actions of Mr Heath in injuring Mr Chell), would that have been have been the case had the ‘horseplay’ involved discriminatory banter based on a protected characteristic (such as race or disability)? The answer is no, because the concepts of vicarious liability in negligence (as here) and employment law are different.

In employment law, it’s enough that the act complained of is done ‘in the course of employment’ which has a very wide meaning. In an employment law context, the only way for an employer to insulate itself from liability would to have policies and processes in place to deter exactly the kind of horseplay that, in a negligence context, was not expected of the employer.

Chell v Tarmac Cement and Lime Ltd

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For more information on this update, or any employment law related matters, please contact Andra Stanton.