Judgment has been handed down in the Court of Appeal’s case of Andrew Chell v Tarmac Cement and Lime Limited. The case considered whether the employer was liable for a practical joke played by a member of staff that resulted in physical injury to a contractor.
In the Court’s opinion, there was not a sufficiently close connection between the practical joke and the work which the “prankster” was employed to do to make it “fair, just and reasonable” to impose liability on the employer. The Court also determined that the employer had not breached its duty of care to the contractor as it was not reasonably foreseeable that the contractor would be injured by a practical joke. Based the facts of the case it was held to be unreasonable and unrealistic to expect an employer to have in place a system to ensure that its employees did not engage in horseplay.
Friction on site but no threats of violence
The facts of the case involved Mr Heath, a site fitter employed directly by Tarmac at a site in Bayston Hill quarry, and Mr Chell, also a fitter, engaged by Tarmac as a contractor to work alongside its fitters at the Bayston Hill site. Tensions arose between the two groups of fitters however this did not extend to threats of violence.
A loud explosion resulting in hearing loss
Mr Chell was working in the workshop when Mr Heath entered. When Mr Chell bent down to pick up a length of cut steel, Mr Heath put two pellet targets on the bench close to Mr Chell’s right ear and hit them with a hammer, causing a loud explosion next to Mr Chell. As a consequence, Mr Chell suffered injuries including hearing loss and tinnitus. Mr Heath was dismissed as a result of the incident following an investigation conducted by Tarmac.
Tarmac not vicariously liable
Tarmac was not deemed liable for Mr Heath’s actions for reasons including:
- The cause of Mr Chell’s injury was the explosive pellet targets that had been brought from off site and were not Tarmac’s equipment;
- It was not part of Mr Heath’s work to use pellet targets and in no sense within the field of activites authorised by Tarmac;
- There was no abuse of power: Mr Heath did not have a supervisory role over Mr Chell’s work in the workshop that day and did not in fact have any business being there;
- There were no threats of violence from the Tarmac fitters; and
- The act of hitting the pellets did not in any way advance the purposes of Tarmac.
In order to establish that Tarmac was vicariously liable for Mr Chell’s injuries there needed to be some greater connection between the practical joke and Mr Heath’s employment than the mere opportunity to commit the act which has been provided by the access to the Bayston Hill site. On no basis could it be said that Mr Heath was authorised to do what he did by Tarmac, and nor were his actions an unlawful mode of doing something authorised by Tarmac.
No breach of duty
To establish that Tarmac had breached its duty of care to Mr Chell, it must be shown that there was a reasonably foreseeable risk of injury to him by reason of the actions of Mr Heath. The Court accepted that, in some circumstances, “horseplay, ill-discipline and malice” could cause a reasonably foreseeable risk of injury in the workplace, but that was not the case here for the following reasons:
- There was no suggestion of threats of violence still less actual violence;
- There was no other indication that Mr Heath might behave in the way in which he did; and
- 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.
Practical difficulties in preventing horseplay in workplace
The Court did not consider that horseplay should be included within an employer’s risk assessment, as it is assumed that employees know that such behaviour is unacceptable in the workplace. The Court did not consider that increased supervision would prevent horseplay, as it is behaviour that employees would seek to hide from a supervisor and, in any event, an employer could not be expected to supervise at all times. 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.
Possibility that an employer could be liable for horseplay in different circumstances
The decision is employer friendly in that it recognises that practical jokes and horseplay can be difficult to police or prevent in practice. However, the case is fact specific and should not be taken as authority for the principle that an employer cannot be liable for any such acts in the workplace. The key is the strength of the connection between the act complained of and the employee’s work. Any act or conduct, which results in injury or risk of injury to another in the workplace is no joke and should be taken seriously by the employer.