Andrew Chell v Tarmac Cement and Lime Limited

Vicarious liability for an employee’s intentional act requires more than the employment creating an opportunity. The act must be authorised, or sufficiently closely connected with an authorised act to be regarded as an unauthorised mode of doing it. A workplace may provide the background to a prank without creating the necessary connection, particularly where the conduct uses non-work equipment, serves no employer purpose and involves no abuse of workplace power. An employer’s duty of care requires a reasonably foreseeable risk of injury from the relevant conduct. The mere availability of dangerous tools, workplace tension without threats of violence, and general possibilities of horseplay do not necessarily satisfy that threshold.

The claimant, employed by Roltec Engineering Limited, was working at a site operated by Tarmac Cement and Lime Limited. A Tarmac fitter struck pellet targets with a hammer close to the claimant’s ear, causing hearing loss and tinnitus.

The claimant alleged that Tarmac was vicariously liable and had breached its direct duty of care, including duties arising under the Management of Health and Safety at Work Regulations 1999. HHJ Rawlings dismissed the claim. Martin Spencer J dismissed the appeal and upheld that decision in [2020] EWHC 2613 (QB). The Court of Appeal considered whether the prank was sufficiently connected with the fitter’s employment and whether injury from such conduct was reasonably foreseeable.

1. Appeal dismissed. The Court of Appeal agreed with the lower courts that Tarmac was neither vicariously liable for the fitter’s conduct nor in breach of its duty of care.
2. For vicarious liability, the relevant question was whether the wrongful act was authorised or was an unauthorised mode of doing an authorised act. Applying Lister v Hesley Hall Limited [2001] UKHL 22 and Morrisons v Various Claimants [2020] UKSC 12, the act had to be sufficiently closely connected with the employee’s work. Mere access to the premises or an opportunity to commit the act was insufficient.
3. The necessary connection was absent. The pellet targets were not work equipment; using them formed no part of the fitter’s duties; the prank advanced no employer purpose; there was no supervisory relationship or abuse of power; and the workplace tensions involved no threats or suggestion of physical confrontation. The business supplied the background and opportunity, but that alone did not create the required connection. The comparison with the practical-joke case of Graham v Commercial Bodyworks Limited [2015] EWCA Civ 47 supported that conclusion.
4. There was no reasonably foreseeable risk of injury from the relevant conduct. The reported tensions were easing, no violence had been threatened, and the fitter’s earlier suspension concerned time-recording misconduct rather than dangerous behaviour. The availability of heavy or dangerous tools did not itself make injury foreseeable.
5. Even if a general risk of horseplay had been established, a specific instruction, continuous supervision or a system ensuring that employees never engaged in horseplay would have been unrealistic. Common-sense workplace expectations and the existing prohibition on intentional or reckless misuse of equipment were sufficient on these facts. The alleged statutory duties under the Management of Health and Safety at Work Regulations 1999 did not require further investigation or specific controls in the absence of an established foreseeable risk.

1. Court of Appeal (Civil Division) dismissed the second appeal.
2. High Court, Queen’s Bench Division Martin Spencer J dismissed the appeal from the County Court and upheld the decision of HHJ Rawlings in [2020] EWHC 2613 (QB).
3. County Court HHJ Rawlings dismissed the claimant’s personal injury and damage claim.