Chell v Tarmac Cement and Lime Ltd - Vicarious liability

In this decision on vicarious liability, the Court of Appeal was called upon to consider the employer's liability for an employee's practical joke that resulted in hearing loss for the contractor involved. In particular, they had to consider to what extent an injury is foreseeable when the employer's materials are used to inflict injury.  

LAW

The law in this area comes from common law, i.e. the decisions made by the courts, which become binding on other courts and must be followed. A summary of the legal position on vicarious liability was given in the case:

"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master."

"But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them."

FACTS 

The claimant was a contractor working on site. He claimed to have suffered tinnitus and hearing loss after an employee of the respondent put two pallets near to the claimant's head, and banged them loudly with a hammer, which resulted in an explosion. The employee responsible was subsequently dismissed. 

Claims were brought against the respondent for breaching its duty to take steps to prevent a foreseeable risk of injury. As a civil matter, this claim was brought before the County Court, progressed through to the High Court and most recently reached the Court of Appeal. 

COUNTY COURT AND HIGH COURT 

The claim was dismissed at first instance by the County Court. 

This was appealed. 

The High Court dismissed both of the claimants’ arguments. The County Court’s application of the law was upheld, in that Tarmac was not vicariously liable for the actions of its employee. 

The High Court confirmed the County Court’s rationale that “horseplay, ill-discipline and malice are not matters that [I] would expect to be included within a risk assessment”. The respondent’s health and safety responsibilities were taken seriously, and an employer could not be expected to cover in a policy or site rules specifics that descend to the level of playing of practical jokes or horseplay.

It was found that the employer’s existing health and safety procedures, including provisions on general conduct, stated that "no-one shall intentionally or recklessly misuse any equipment". These were held to be sufficient given the myriad ways in which employees could get involved in horseplay, ill-discipline or malice and that nothing more specific could be expected. It was also not reasonable to expect an employer to increase supervision to prevent horseplay, ill-discipline or malice in the workplace.

COURT OF APPEAL (COA)

The CoA upheld the rulings of the two preceding courts. It was held to be both unreasonable and unrealistic to expect employers to have in place systems that stopped horseplay, and that, even though the employer’s materials were used in the "joke", the risk was not inherent to the business and the employee was in no way authorised to act in the way that he did.

Note for employers 

Employers will be comforted by the fact that they are unlikely to be liable for an employee’s actions when they are not connected to the activities they are actually employed to do. It is not possible to foresee every way that an individual may act and explicitly prohibit that. 

However, it is important that the employer’s takeaway from this need to be fully aware of their health and safety responsibilities and ensure their procedures are up to date. These procedures need to be accessible for employees and checks made to ensure they have read and understood. It is vital that these are actually implemented, and any breaches of the rules are followed up on swiftly and appropriate action taken, to reinforce the employer’s commitment to the health and safety of their employees.

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