Employer not directly or vicariously liable for personal injury from practical joke gone wrong

The High Court considered on appeal the second stage of the test for vicarious liability and whether an employer is directly liable for the injury caused to a third party after an employee’s practical joke went wrong. It was held that in the circumstances the employer was not vicariously or directly liable for an employee engaging in a practical joke, as it was outside the scope of the ordinary course of his employment and it would not be fair and proper to hold the employer liable for such an act. It was also held that it would be unreasonable for an employer to be expected to risk-assess generally for horseplay, ill-discipline or malice when a full and comprehensive health and safety policy addressing specific and more serious general hazards.

In Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613 (QB), Mr Chell was a sub-contractor working for Tarmac on their premises. He was injured when an employee of Tarmac, as a joke, set off explosive pellet gun targets by hitting them with a hammer close to Mr Chell’s head. Mr Chell alleged that he was targeted for the practical joke due to tensions between the workforce and sub-contractors and that Tarmac were directly and vicariously liable for the action of their employee. He asserted that Tarmac should have risk-assessed for the foreseeable risk of injury arising from the tensions between the workforce and sub-contractors, and otherwise were responsible for the actions of the employee causing the injury.

The decision at first instance

HHJ Rawlings found at first instance that Tarmac were neither vicariously nor directly liable, taking into account that:

• the pellet gun target was not work equipment but brought onto site by the employee;
• using, let alone hitting pellet guns formed no part of his usual duties;
• hitting a pellet gun target with the hammer as a practical joke did not advance the employer’s goals; and
• that Mr Chell and the employee were on Tarmac’s premises at the same time only provided the opportunity for the practical joke rather than the practical joke being within the employee’s usual field of activities.

The issues on appeal

C appealed the decision on both direct and vicarious liability. C argued that:

• there was a close connection with the employment because the employee was trying to lighten the mood due to the failure of the employer to take any action to address the tensions; and
• Tarmac should have assessed and taken action against the foreseeable risk of injury from ill-discipline and horseplay generally and specifically arising from the tensions between the workforce and sub-contractors of which it was aware.

The decision on appeal

Spencer J found that HHJ Rawlings’s application the test for vicarious liability was exemplary, full and correct. He agreed that the employee was engaged on a frolic of his own and that it was abundantly clear that he was not engaged in furthering his employer’s business when he carried out the misguided practical joke and so could not fairly or properly be held to be acting in the ordinary course of his employment. Spencer J specifically found that Mr Chell’s submission on appeal that the wrongful act was committed during a seamless transition from his work was only relevant to the issue of the opportunity to commit the wrong rather than liability for the wrong.

Spencer J went on to note that horseplay, ill-discipline and malice were not matters he would expect to be included in a risk assessment. It would expect too much of organisations such as Tarmac, who clearly took serioulsy the assessment of risk to the lives and health of their employees, to descend to the level of horseplay and practical jokes. He found that the existing health and safety procedures on conduct were sufficient, and that it would be unreasonable to expect employers to address anything more specific to cover the multifarious ways in which employees could engage in horseplay, ill-discipline or malice.

Comment

This case adds to the growing bank of authorities on what does and does not give rise to vicarious liability and is an important decision on when employers can be held liable for horseplay gone wrong. It provides some clarity on the fraught question of how to assess whether the wrongful act concerned can be “fairly and properly” regarded as committed by an employee in the ordinary course of their employment. Key to the decision was that it did not further the objectives of the employer, although it was not an act directly against the employer as in the previous leading case.

The decision also provides comfort to employers that they do not need to specifically risk-assess and mitigate for horseplay, ill-discipline or malice of their employees unless they are on notice of a pattern of behaviour.