Principle of vicarious liability and horseplay
In the case of Chell v Tarmac Cement and Lime Ltd the Court of Appeal (CA) was asked to consider the question of whether an employer could be held liable for the actions of its employees when engaging in horseplay.
The Appellant (C) was employed by Roltec Engineering Ltd (Roltec) as a Site Fitter. He worked at a site that was operated and controlled by Tarmac Cement and Lime Ltd (Tarmac). C was providing services for Tarmac’s business.
There were tensions between the Roltec and Tarmac fitters, the latter fearing that the former would take their jobs. However, there were no threats of physical violence or risk of physical confrontation and at the time of the incident in question, it was accepted that tensions were easing.
An incident took place whereby a fitter employed by Tarmac used a hammer to strike a target which he had placed on a bench close to C’s ear causing him to sustain an injury, namely hearing loss and tinnitus.
C sought to argue that Tarmac was vicariously liable for the actions of their fitter and was liable for negligence for breaching its duty to prevent a foreseeable risk of injury.
The CA dismissed the claims and upheld the findings lower courts.
In so doing the CA paid attention to the principles laid down in the cases of Lister v Hesley Hall Ltd and Muhamud v WM Morrisons Supermarket PLC.
The CA had specific regard to the fact that whilst it was accepted C had previously raised concerns relating to increased hostilities, it was not accepted that those hostilities were as serious as C later went on to assert. They also rejected C’s suggestion that he had asked to be removed from the site. Whilst the Tarmac fitter had previously been suspended from his duties this was about unrelated matters relating to timekeeping. Tarmac later dismissed their fitter following a disciplinary investigation. The CA found that the incident represented a joke connected with the rising tensions, but there was no intention on the part of the fitter to cause physical harm.
The CA decided that, whilst accepting that horseplay, ill-discipline, and malice could be a mechanism for causing a reasonably foreseeable risk of injury, that was not made out on the facts of this case, where the Tarmac fitter was found to be engaging in horseplay that was not connected to the field of activities for which he was employed. Tarmac could not therefore be held responsible for his actions.
The fundamental question, therefore, remains whether the wrongful act is sufficiently related to the conduct authorised by the employer to justify holding the employer responsible for its employee’s actions under the principle of vicarious liability.
The first blog appeared on Daniel Barnett’s Employment Law Bulletin and was written by Kate Lea, Senior Solicitor at didlaw.