No fooling about when it comes to vicarious liability!
The trend creating an uphill struggle for claimants to succeed in such horseplay and more general VL cases continues...
Andrew Chell v Tarmac Cement and Lime Limited —  EWCA Civ 7
The Court of Appeal has confirmed that Tarmac was neither vicariously liable nor in breach of their direct duty of care for the horseplay of their staff during work time in the workplace.
The appellant, Mr Chell, suffered hearing loss and tinnitus whilst working at a site controlled by the respondent (Tarmac), when the respondent’s fitter (Mr Heath) placed two pellet targets on a bench adjacent to the appellant’s ear and hit them with a hammer causing a ‘loud explosion’. Mr Heath’s employment was terminated as a result of the incident. Mr Chell was employed as a fitter by a third party, Roltec, and the incident occurred following what was described as a period of tension (concerning Tarmac staff not welcoming Roltec staff on to site), something which had been flagged by the appellant to management prior to the incident.
The appellant alleged that the respondent was vicariously liable for the actions of their employee as well as in breach of their direct duty of care towards him for failing to prevent a foreseeable risk of injury.
It was accepted by the parties that whilst the hammer was work equipment, the pellet targets had not been supplied by Tarmac but had been brought on to site from outside.
Further, at the first instance trial, the judge had found as matters of fact that:
- Immediately before the accident, the appellant and Mr Heath had not been working together in the workshop but had access to it;
- Mr Heath had no supervisory role over the appellant or his work;
- The practical joke by Mr Heath was connected to the tensions between staff but such tensions had only been flagged once before with supervisors and had not included any express or implied threats of violence, had not referenced Mr Heath, had started to subside in the run-up to the incident, and had not included any request by the appellant to be removed from the site as a result.
The appellant lost his case at first instance and on appeal, both in respect of vicarious liability and breach of duty. He appealed to the Court of Appeal on the basis that the lower courts had misapplied the law to the facts.
Giving the lead judgment, Lady Justice Nicola Davies agreed that Tarmac was not vicariously liable for the actions of Mr Heath as his actions were not “done in the course of employment”. He had not been authorised to do what he did and neither were his actions an unlawful mode of doing an authorised act. Mr Heath’s actions did not advance the purposes of the respondent, and no part of Mr Heath’s work required him to hit pellet targets. In her opinion, Mr Heath’s actions were not so closely connected to what he was authorised to undertake such as to make it “fair just and reasonable” to impose liability, as:
- The pellets were not work equipment. Neither were they required for Mr Heath’s work;
- Mr Heath had no supervisory role and there was no abuse of power by Mr Heath;
- Mr Heath had not been engaged on the work which the appellant was carrying out at the time of the incident;
- Any risk created by Mr Heath was not inherent in the workplace — any general tensions between staff had been subsiding, there had been no threats of violence, the appellant had not asked to be removed from site and had not referred to Mr Heath as the source of any tension.
Further, Lady Justice Davies held that whilst horseplay, ill-discipline and malice can give rise to a reasonably foreseeable risk of injury, such risk had not been made out on the facts, and/or any duty of care had not been breached. She accepted the trial judge’s findings that there had been no threats or actual violence, no complaints about named individuals and no suggestion that Mr Heath might engage in dangerous horseplay. “The mere fact that heavy and dangerous tools were available does not of itself create a reasonably foreseeable risk of injury due to misuse of a tool”. Of wider application, in her opinion, to require employers to issue a specific instruction to their staff not to engage in horseplay was unrealistic.
“Common sense decreed that horseplay was not appropriate at a working site. The fitters were employed to carry out their respective tasks using reasonable skill and care, and by implication to refrain from horseplay. It would be unreasonable and unrealistic to expect an employer to have in place a system to ensure that their employees did not engage in horseplay”
In any event, general site rules at Tarmac’s premises had included a duty not to misuse tools which was a warning against exactly what Mr Heath did, and in the face of subsiding tensions, lack of violence and no specific allegations against individuals, there had been no requirement for Tarmac to have undertaken an investigation in respect of the friction on site. The appellant’s claims failed.
Having been explicitly explored in the first instance decision, the Court of Appeal was clearly also influenced by the five factors set out in the earlier case of Lister which help determine whether there is a sufficient connection between a wrongful act and the employment relationship, namely:
- The opportunity that the enterprise afforded the employee to abuse his or her power
- The extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee)
- The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise
- The extent of power conferred on the employee in relation to the victim
- The vulnerability of potential victims to wrongful exercise of the employee's power.
To this extent, Chell follows now well-established principles on vicarious liability and continues a trend in recent cases creating an uphill struggle for claimants to succeed in such horseplay and more general VL cases. Such cases do however remain very fact-sensitive and therefore difficult to assess. A relatively minor shift in circumstances could be material. For example, had the pellet targets been supplied by Tarmac and/or had Mr Heath been required to hammer them at work, or work in the workshop alongside the appellant, any of these points might have been sufficient to deliver a different result in this case and claim handlers should closely and methodically scrutinise the circumstances of any VL cases.
Chell is however perhaps of greater significance in respect of the comments relating to the direct duty of care. The judgment is a welcome one releasing employers from any duty to acknowledge or control any general risk of tomfoolery or horseplay between staff in the absence of specific factors which ought to have put such an employer on notice.
For all these reasons, the Chell judgment is to be welcomed by employers and their insurers.
For further guidance on this case or its implications for insurers, contact our casualty lawyers.