Chell v Tarmac Cement And Lime Ltd

An employer is not generally liable for an employee’s practical joke merely because employment created the opportunity for it. Vicarious liability requires a sufficient connection between the employee’s authorised field of activities and the wrongful act. A temporal or workplace connection is not enough where the employee acts for purely personal purposes. An employer’s duty of care also depends on a reasonably foreseeable risk of injury. Ordinary site rules against misuse of equipment may be sufficient; an employer need not ordinarily devise detailed risk assessments or enhanced supervision directed specifically to horseplay, ill-discipline or practical jokes.

The claimant, an employee of a contractor working at the defendant’s site, suffered hearing injury when the defendant’s employee struck pellet targets with a hammer beside his ear as a practical joke. He alleged that the defendant was directly negligent in failing to manage workplace tensions, discipline and supervision, and was vicariously liable for the employee’s conduct.

HHJ Rawlings dismissed the claim after finding no sufficient connection for vicarious liability and no reasonably foreseeable risk giving rise to a direct duty or breach. The claimant appealed to the High Court, challenging the factual findings and the application of the law.

1. The appeal was dismissed. The first-instance judge had made findings of fact open to him and had not erred in law.
2. For vicarious liability, the applicable two-stage inquiry required identification of the employee’s field of activities and consideration of whether there was a sufficient connection between that position and the wrongful conduct to make it just to impose liability. The approach in Lister v Hesley Hall Ltd [2001] UKHL 22 remained applicable and was reinforced by Morrisons v Various [2020] UKSC 12 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48.
3. The employee’s use of a work hammer and the fact that the incident occurred at work were incidental. The practical joke was not within his assigned activities, did not advance the employer’s purposes and was undertaken for his own amusement. The workplace tensions did not create a sufficient connection, particularly because they involved discomfort and verbal friction rather than a foreseeable risk of violence. The reasoning in Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 was properly applied.
4. No direct duty requiring the defendant to take the proposed precautions arose. The evidence did not establish a reasonably foreseeable risk of deliberate injury by the employee. The existing site rules, including the prohibition on intentional or reckless misuse of equipment, were sufficient. It was not reasonable to expect a risk assessment or enhanced supervision specifically directed to horseplay, ill-discipline or malice.
5. The first-instance conclusions concerning the workplace tensions, the absence of threats of violence and the absence of a specific foreseeable risk from the employee were conclusions properly available on the evidence. Sympathy for the claimant could not establish liability.

• High Court (Queen’s Bench Division): appeal from HHJ Rawlings sitting in the Stoke-on-Trent County Court dismissed; the dismissal of the claim was upheld.