The Court of Appeal has upheld the High Court's decision in Chell v Tarmac Cement and Lime Ltd (reported in November 2021's edition of hrlaw) that an employer was not negligent or vicariously liable for a contractor's personal injury suffered in its workplace because of an employee's practical joke.
The contractor was a site fitter whose services were contracted out to TCL Ltd at one of its quarry sites. Tensions arose between the contractors and TCL Ltd's employees who thought their jobs were in jeopardy. The contractor raised the issue with his supervisor but continued to work on the site, and a few weeks later one of TCL Ltd's employees, H, decided to play a prank on the contractor. He put some pellet targets onto a workbench near the contractor's right ear and struck them with a hammer, which caused them to explode. The contractor suffered a perforated eardrum, hearing loss and tinnitus and claimed damages for personal injury from TCL Ltd in the county court, arguing that it was vicariously liable for H's actions. The county court rejected the contractor's claim and then so did the High Court.
The Court of Appeal rejected the appeal, holding that it was expecting too much of an employer to devise and implement a health and safety policy, or other rules, which cover horseplay or the playing of practical jokes. Although it accepted that the contractor had previously made his supervisor aware that there were rising tensions between employees and contractors on-site, there was no foreseeable risk of injury. Tensions were not so serious as to suggest the threat of violence or confrontation and so increased supervision was not a reasonable step to expect the employer to have identified and taken.
Although the incident had happened in the workplace, the employer was not vicariously liable for the employee's actions. The employee's actions were unconnected with any instruction given to the employee in connection with his work and did not in any way advance the purpose of his employer.
Take note: The Court of Appeal's decision to uphold the High Court's decision in Chell is good news for employers who would not have been keen to see the expansion of potential vicarious liability into the area of unanticipated practical jokes. It was clear here that there was no serious tension between the employee and the contractor (at least none to suggest potential violence), and that the employee's joke was unconnected with any instructions given to him by the employer. Employees were expected to carry out their tasks using reasonable skill and care and common sense decreed that horseplay was inappropriate at a working site.
