Vicarious liability is the means by which an employer can be made liable in certain circumstances for the wrongdoing of an employee.
We previously discussed in our blog some earlier cases this year and how they affected the law relating to vicarious liability.
A more recent appeal looked at whether an employer could be liable for a practical joke played by an employee in Chell v Tarmac Cement and Lime Limited (2020).
Mr Chell was employed by Roltech Engineering Limited as a site fitter and was contracted out to Tarmac Cement and Lime Limited. The Defendant company also employed its own fitters who worked alongside the Claimant and other fitters contracted by Roltech. There was some tension between the two sets of fitters.
On 4 September 2014, Mr Anthony Heath, employed by the Defendant, decided to play a practice joke on Mr Chell by hitting two pellet targets with a hammer causing a loud explosion. Mr Chell unfortunately suffered a perforated right eardrum, noise-induced hearing loss. Mr Heath was accordingly dismissed from employment.
Mr Chell brought claims both against the Defendant in their own right and also on the basis that they were vicariously liable for the actions of Mr Heath.
The First Decision
The original claim was heard by Judge Rawlings in October 2019.
Having applied all the leading cases on vicarious liability (including Cox v MoJ  and Mohamud v William Morris Supermarkets PLC  and Lister v Hesley Hall Limited , Wilson v Exel UK Limited , Weddall v Barchester Health Limited  and Graham v Commercial Bodyworks Limited ), the judge made the following findings:
a) The first limb of the Lister two-limb test being a close relationship between Tarmac and Mr Heath is satisfied, because Mr Heath was Tarmac’s employee at the relevant time;
b) The second limb of the Lister test remains undisturbed by the Supreme Court decision in Mohamud. The test is whether there is a sufficient connection between the relationship between Tarmac and Mr Heath as employer/employee and Mr Heath’s act of striking two pellet targets with a hammer close to Mr Chell’s ear to make it just that Tarmac should be held responsible for that act;
c) In considering that question I should consider first the field of activities entrusted to Mr Heath by Tarmac and secondly whether there is sufficient connection between that field of activities and the position in which Mr Heath was employed; and Mr Heath’s act of striking the two targets with a hammer close to Mr Chell’s ear, to hold that Tarmac should be liable having regard to the principles of social justice; and
d) In considering whether there is a sufficient connection between the wrongful act and the employer/employee, I should consider the five factors identified by Lord Justice Longmore in Graham, but other factors may also be taken into account.”
The judge concluded that Mr Heath’s actions were not within the field of activities assigned to him by his employer Tarmac because:
a) The pellet target was brought on to the site, either by Mr Heath or one of his colleagues – it was not work equipment;
b) It formed no part of Mr Heath’s work to use let alone hit pellet targets with a hammer at work;
c) What Mr Heath did was unconnected to any instruction given to him in connection with his work;
d) Mr Heath had no supervisory role in relation to Mr Chell’s work and at the index time he was meant to be working on another job in another part of the site;
e) The striking of the pellet targets with a hammer did not in any way advance the purposes of Tarmac; and
f) In all those circumstances, work merely provided an opportunity to carry out the prank that he played, rather than the prank in any sense being in the field of activities that Tarmac had assigned to Mr Heath.
The Appeal Decision
Permission was granted to the Claimant to appeal in February 2020 and this was heard by Mr Justice Martin Spencer in July 2020 with Judgement then being handed down in October 2020.
It was argued by the Claimant that the judge had “failed to give adequate consideration to the “close connection” test applied in sexual abuse cases, approaching the issue from too narrow a perspective.” The following factors were argued to have been sufficient to lead to findings of vicarious liability:
(i) Mr Heath claimed to be lightening the mood after recent tensions in acting as he did;
(ii) the transition from working in the course of his employment to causing the explosion is likely to have been seamless and thus should more readily be understood as something within the course of his employment;
(iii) Mr Heath was acting due to an employment issue which could and should have been managed by the Defendant, there being no personal vendetta against the Claimant himself;
(iv) the Claimant was placed by the Defendant in a vulnerable position being a temporary worker faced with tension from a permanent employee;
(v) it was the employment that created the opportunity for the incident in Breen working men together with no apparent supervision, training or disciplinary policy and with Mr Heath and Mr Starr having licence to roam the site and sneak up on the Claimant;
(vi) the incident involved the use of work equipment, namely the hammer.
Incidentally the judge at first instance did not at that time had the Supreme Court decision in Morrisons v Various (2020) but the appeal court found that would not have made a difference and in fact would probably have consolidated his original decision. The appeal was dismissed as no flaws were found in the original decision on the application of the rules on vicarious liability.
Parting words from Mr Justice Martin Spencer which appeared at the start of his written judgment in the appeal:
The practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong. Mark Twain was surely right when he said:
“When grown-up persons indulge in practical jokes, the fact gauges them. They have lived narrow, obscure, and ignorant lives, and at full manhood they still retain and cherish a job-lot of left-over standards and ideals that would have been discarded with their boyhood if they had then moved out into the world and a broader life.”
But as always with these cases of vicarious liability, each will turn on its own facts.
If you’re seeking legal advice relating to vicarious liability please call our highly experienced Dispute Resolution experts on 0808 252 5231 to talk through your situation with us. Alternatively, you can request a call back or get in touch online.