Employer not vicariously liable for “practical joke” of employee which caused contractor’s hearing loss

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Employer not vicariously liable for “practical joke” of employee which caused contractor’s hearing loss

Key Contact: Claire Knowles

Author: Rebecca Mahon

In the case of Chell v Tarmac Cement and Lime Limited, the High Court found that Tarmac was not vicariously liable for the actions of a rogue employee who sought to play a practical joke on his colleague. This is one of the first cases to apply the Morrisons judgement of the Supreme Court, handed down earlier this year.

Mr Chell worked as a contractor for tarmac and suffered a perforated ear drum, serious hearing loss and tinnitus after a Tarmac employee (Mr Heath) set off two “pellet targets” next to Mr Chell’s ear. Mr Chell argued that he had brought the tension between contractors and permanent employees to the attention of his supervisor before the incident occurred. It was said that the permanent employees felt that the contractors were putting their jobs in jeopardy and that bad feeling had arisen as a result. Mr Chell argued that in not addressing this issue “head on” at the time, Tarmac was negligent and breached its duty of care and should be held vicariously liable for the actions of Mr Heath.

Tarmac promptly dismissed Mr Heath following the incident.

Dealing with the issue of negligence and breach of duty, the court held that Tarmac is actually “an organisation that took health and safety matters seriously” and that “it is expecting too much of an employer to devise and implement a policy or site rules which descend to the level of horseplay or the playing of practical jokes”. Notwithstanding that Tarmac had been informed of tensions between the contractors and permanent employees, this “did not merit specific action in relation to Mr Heath where there was no foreseeable risk of injury to the Claimant” and “the criticisms of Tarmac are very much made with the benefit of hindsight”.

With regard to the issue of vicarious liability, the court considered the Morrisons judgement. It specifically honed in on the point made by Lord Reed in the Supreme Court in that case that the individual “was not engaged in furthering his employer’s business when he committed the wrongdoing but rather, on the contrary, he was pursuing a personal vendetta”. In other words, in the Morrisons case it was held that the individual was acting on a “frolic of his own”. Applying this to incident involving Mr Chell, the court found that:

  • Mr Heath had brought the pellet targets on-site from his home with the sole intention of playing a practical joke (they were not needed for work and had nothing to do with work).
  • To “set off” the pellet targets, Mr Heath hit them with a hammer which belonged to Tarmac, and the incident took place in a Tarmac workshop. However, Mr Heath had no work-related reason to be in the workshop (he had come across from a different area of the site, where he was supposed to be working, in order to play the practical joke) and the use of the Tarmac hammer was “wholly incidental to the act in question”.
  • Whilst there was a “seamless transition” between working in the course of employment and causing the explosion, this was not a significant factor in this case.

This is a welcome judgement for employers who, despite their best efforts, may not be able to prevent every workplace incident from occurring. The courts have clearly recognised that sometimes, an employer will unfortunately end up with a “rogue employee”. As per the Judge’s closing remarks in this case, whilst one may have significant sympathy for Mr Chell, “sympathy cannot found a sound legal basis for a finding of liability”. It is noteworthy that in this case a lot of attention was given to Tarmac’s health and safety policies and procedures and witness evidence provided by the HR manager regarding Tarmac’s investigation procedures. Absent such stringent policies and procedures being in place, the outcome of this case may have been quite different.

If you need any help or support with your internal policies and procedures, whether you need new ones or a review of your existing documents, please do not hesitate to contact our employment team.

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