The Court of Appeal has upheld a decision that an employer was neither negligent nor vicariously liable when an employee seriously injured a contractor when a practical joke went badly wrong.
The Facts
Four individuals were working in an office in a quarry. Two of them were employed by the company that owned and ran the quarry, Tarmac Cement and Lime Ltd, and two were contractors. There was tension between the employees and the contractors because the employees (wrongly) perceived the contractors to be a threat to their jobs. Mr Chell was one of the contractors and Mr Heath was one of the employees.
Mr Chell was working in the onsite workshop. Mr Heath had brought two “pellet targets” into work. When Mr Chell bent down, Mr Heath placed the pellet targets on a bench close to Mr Chell’s ear and hit them with a hammer. This caused a loud explosion. This was intended as a practical joke but it went disastrously wrong: Mr Chell suffered a perforated ear drum, noise- induced hearing loss and tinnitus. Mr Heath was dismissed.
Mr Chell claimed in the County Court that Tarmac had breached its own duty of care and failed to provide a safe working environment. He also claimed that Tarmac was vicariously liable for the acts of Mr Heath. The County Court rejected both claims, and Mr Chell appealed to the High Court which upheld the County Court judgment. Mr Chell appealed to the Court of Appeal, which also upheld the County Court judgment.
In reaching their judgments on vicarious liability, the courts had to decide whether the practical joke had been done in the course of Mr Heath’s employment – the key test in vicarious liability cases. The courts all agreed that there was not a sufficiently close connection between Mr Heath’s employment and his wrongful act for the practical joke to have been done in the course of his employment. There were several facts which were key to the courts’ judgments. The explosive pellets (which were the real cause of the injuries) came from Mr Heath’s home, and they were nothing to do with his work. Mr Heath’s actions were unconnected with any instruction given to him in connection with his work and they did not in any way advance Tarmac’s purpose. There was no abuse of power, and Mr Heath had no supervisory responsibility for Mr Chell. The fact that the prank happened in the workplace and the context of Tarmac’s business, did not mean that the prank fell within the field of work activities. It could not be said that Mr Heath’s acts were an unlawful mode of doing something authorised by Tarmac or that in any way Tarmac had authorised the prank. Apart from the workplace context, the only other link between work and the prank was the fact that Mr Heath had used Tarmac’s hammer: this was not enough to create vicarious liability.
In considering whether there had been a breach of the duty of care, the courts all agreed that there was no reasonably foreseeable risk of injury arising from the prank. Horseplay, ill- discipline and malice can provide a mechanism for causing a reasonably foreseeable risk, but the facts of this case did not support this. There had been tension, but no suggestion of violence, and there had been no indication that Mr Heath might behave in the way he did. The mere fact that heavy and dangerous tools were available did not of itself create a reasonably foreseeable risk of injury due to misuse of such a tool. It would be expecting too much for an employer to have to increase supervision to cater for, or to cover horseplay or practical jokes in a risk assessment. The fact Tarmac did not do a risk assessment did not make Tarmac negligent.
What Does This Mean for Employers?
The fact the Court of Appeal upheld the earlier decision of the lower court is welcome news for employers, confirming it will be unusual (though certainly not impossible) for employers to be liable for personal injury caused by their employees’ unforeseen practical jokes.
At the same time employers should remember that there remains a risk of discrimination and constructive unfair dismissal claims arising from practical jokes.
Chell v Tarmac Cement and Lime Ltd
