15 October 2020

"When grown-up persons indulge in practical jokes, the fact gauges them. They have lived narrow, obscure, and ignorant lives.” It is not often that a High Court Judge echoes Mark Twain in prefacing a judgment, but Mr Justice Martin Spencer did just that last week in his judgement in Chell v Tarmac Cement and Lime Limited, a link to which can be found here. The judgment is one in a line of recent decisions on the hot topic of vicarious liability, and one which serves to reinforce a recent judicial trend.

In Chell, the claimant was one of a number of site fitters employed by a company called Roltech and was contracted to Tarmac to work at a site in Shropshire. Tarmac’s own site fitters worked alongside those supplied by Roltech, and tensions arose between the two groups of fitters. The issue was brought to the attention of the claimant’s supervisor, who suggested he “stick it out” for a few more weeks in response to the claimant’s request that he be removed from site. Shortly thereafter, in an intended practical joke, one of the Tarmac fitters set off explosive pellet gun targets by striking them with a hammer in close proximity to the claimant’s head. The perpetrator was summarily dismissed from his employment. However, the claimant suffered a perforated eardrum and hearing loss. He advanced a claim for personal injury, contending that Tarmac were vicariously liable for the actions of their employee.

At first instance, the “two-stage test” as originally set out in Lister v Lesley Hall [2002] 1 AC 215 was applied. Firstly, the court considered the relationship between the primary wrongdoer and the party alleged to be liable, and whether that relationship was capable of giving rise to vicarious liability. Secondly, the court considered whether there was a sufficiently close connection between the wrongdoing and the employment such as it was “fair and just” to hold the employer liable. On the facts, the court held that although stage one was satisfied, the workplace “merely provided an opportunity to carry out the prank… rather than the prank in any sense being in the field of activities that Tarmac had assigned”.

The claimant appealed, arguing that the Judge at first instance had approached the issue from an overly narrow perspective. He contended, inter alia, that the Tarmac employee claimed to be “lightening the mood” on site following recent tensions, and that he had been placed in a vulnerable position by Tarmac as a temporary worker faced with tension from a permanent employee.

The High Court held that the application of the test for vicarious liability applied at first instance was “exemplary, full, and correct” and reflected the authoritative statements from recent leading cases. In particular, Spencer J commented that, although the judge did not have available to him the decision of the Supreme Court in Morrisons v. Various [2020] UKSC12, had he done so it would have reinforced his approach. Morrisons concerned an internal auditor posting personal details for around 100,000 employees onto the internet as an act of revenge against the company. The Supreme Court held that a temporal and causal connection was not enough for vicarious liability; the fact that the employment simply gave the employee the opportunity to commit the wrongful act was not sufficient to warrant such an imposition, and situations where an individual is not acting on his employers’ business, but in pursuit of his own private ends, ought to be distinguished.

It will come as a comfort to employers that, fundamentally, it is difficult to see circumstances where vicarious liability arises as a result of a practical joke on the part of an employee. The decision in Chell, together with that reached in Morrisons, emphasise that vicarious liability can be restricted to circumstances where the actions of the employee are carried out in furthering the business of the employer, whether harm is intended or not.

Contact: Calum Sweeney, Associate:  csw@bto.co.uk / 0141 221 8012