This article is authored by Joshua Burg, Litigation Executive, London.
An interesting judgment was recently handed down by the Court of Appeal in the case of Chell v Tarmac Cement and Lime Limited [12.01.22] where employers were held to be not vicariously liable for a work prank gone wrong.
The claimant was employed as a fitter by Roltech Engineering Limited. He was contracted out to work for the defendant, Tarmac Cement and Lime Limited and worked alongside Tarmac’s own fitters. Tensions arose between the contracted and Tarmac’s fitters until one of latter, as a practical joke, put two “pellet targets” on the bench close to the claimant’s right ear and hit them with a hammer causing a loud explosion.
The claimant sustained a perforated right eardrum, noise-induced hearing loss and tinnitus. The claimant brought a claim against Tarmac for failure to provide a safe work environment and for being vicariously liable for the actions of its employee, the practical joker. Tarmac argued the actions of the practical joker were not within the course of his employment and they could not be responsible for the ‘horseplay’ of one of its employees.
The trial judge found Tarmac not liable by applying the Lister and Others v Hesley Hall Limited  ‘two-limb’ test, namely:
1 Whether the relationship between the defendant and the primary wrongdoer was so close that it was capable of giving rise to vicarious liability.
2 Whether the connection between that relationship and the primary wrongdoing was close enough to impose liability on the defendant.
Furthermore, Tarmac had the correct health and safety guidelines in place and increased supervision to prevent ‘horseplay’ was not a reasonable step to expect Tarmac to have identified and taken.
High Court decision
The claimant unsuccessfully appealed to the High Court. It was deemed the trial judge had correctly adopted the Lister two-limb test for vicarious liability and the threshold was not met. Morrisons v Various  was also referenced as supporting this decision. When dealing with Tarmac’s direct liability, it was again held the trial judge was correct in his assessment of the health and safety procedures in place and increased supervision not being a reasonable step.
Court of Appeal decision
The claimant then appealed to the Court of Appeal. In a unanimous judgment, it was held that the relevant issue of vicarious liability was whether or not the practical joker’s actions were a wrongful act authorised by Tarmac or a “wrongful and unauthorised mode of doing some act authorised by Tarmac”. Should either of those have been the case, then Tarmac would be vicariously liable however, neither applied here. There was not a sufficiently close connection between the act which caused the injury and the work of Tarmac’s employee so as to make it fair to rule that Tarmac were vicariously liable. It was also found there was no reasonably foreseeable risk of injury from ‘horseplay’ that would deem Tarmac liable to the claimant.
This decision is reassuring confirmation for defendants that vicarious liability decisions are continuing the recent trend (as seen in the cases of Shelbourne, Morrisons and Barclays) of limiting what actions employers can be deemed vicariously liable for. It also confirms that just because a particular type of incident is not dealt with in a company’s health and safety documents does not mean that an employer will automatically be liable for an injury sustained at work. Consideration should be given as to whether the incident was reasonably foreseeable.
We would however caution that this ruling does not necessarily mean that employers will never be liable for ‘horseplay’ in the work place.
Employment contracts may provide guidance as to an employer’s stance on such activities but care should also be taken to look at the history of such pranks in the company and what steps the management took (if any) on discovery of them.