Andrew Chell v Tarmac Cement and Lime Limited

The Court of Appeal dismissed the claimant's appeal against judgments at first instance and in the High Court. The central legal issues were vicarious liability and negligence (employer's duty of care) arising from a practical joke in the workplace which caused noise-induced hearing loss and tinnitus. Applying the Lister framework and later authorities including Mohamud and Morrisons, the court held there was not a sufficiently close connection between the employee's wrongful act and the activities entrusted to the employer to impose vicarious liability. The court also held there was no breach of a duty to take reasonable steps to avert a reasonably foreseeable risk of injury because the reported tensions did not give rise to a risk of violence and the prank was not a predictable misuse of employer-provided equipment; further, general site rules and the nature of horseplay meant no specific risk assessment or supervisory regime was reasonably required.

This appeal arises from a claim for personal injury sustained by the appellant while working as a site fitter for a contractor at a site operated by the respondent. On 4 September 2014 a Tarmac fitter struck two pellet targets with a hammer close to the appellant's ear, causing noise-induced hearing loss and tinnitus. The appellant sued in negligence and in vicarious liability, seeking damages for personal injury.

Procedural posture: the claim was dismissed by HHJ Rawlings at Stoke-on-Trent County Court on 14 October 2019. That dismissal was upheld by Martin Spencer J in the Queen's Bench Division ([2020] EWHC 2613 (QB)). Permission to appeal to the Court of Appeal was granted on 16 April 2021. The Court of Appeal heard the matter and delivered judgment on 12 January 2022.

Issues framed by the court: (i) whether Tarmac was vicariously liable for the deliberate prank played by its employee; (ii) whether Tarmac owed and breached a duty of care to prevent a foreseeable risk of injury arising from tensions and horseplay on site; and (iii) causation related issues.

The court's reasoning: on vicarious liability the court applied the established two-limb test and the more recent authorities refining the close-connection analysis. It examined the field of activities entrusted to the employee, the connection between that field and the wrongful act, and subsidiary factors drawn from precedent. The facts found by the trial judge — that the pellet targets were brought from outside, that striking targets was not part of the employee's work, that the employee had no supervisory authority over the claimant, and that the tensions between groups of fitters did not include threats of violence — meant there was no sufficient connection to make it fair and just to impose vicarious liability.

On negligence, the court accepted that horseplay may create a risk but concluded that, on the facts found, there was no reasonably foreseeable risk of the specific practical joke causing injury and that the general site rules and the impracticality of continuous supervision meant there was no breach in failing to identify or address horseplay in a more specific way in the risk assessment. The court therefore dismissed the appeal.

Appeal dismissed. The court concluded that (1) the employee's act of striking pellet targets was not within the field of activities entrusted to him and there was not a sufficiently close connection to impose vicarious liability on the employer; and (2) on the facts found there was no reasonably foreseeable risk of the particular prank such as to give rise to a breach of an employer's duty to take further preventative steps.

County Court (HHJ Rawlings, Stoke-on-Trent County Court) – trial judgment dismissing claim (14 October 2019); High Court, Queen's Bench Division (Martin Spencer J) [2020] EWHC 2613 (QB) – appeal dismissed (5 October 2020); permission to appeal to the Court of Appeal granted 16 April 2021; Court of Appeal (this judgment) [2022] EWCA Civ 7 (12 January 2022).