In Chell v Tarmac Cement and Lime Ltd , the Claimant was employed by Roltec Engineering Ltd (Roltec) as a site fitter. He worked at a site that was operated and controlled by Tarmac Cement and Lime Ltd (Tarmac) therefore providing services for the purposes of Tarmac’s business.
There were tensions between Roltec and Tarmac fitters as the Tarmac fitters were concerned about their jobs. As a result, on 4 September 2014, another fitter employed by Tarmac used a hammer to strike two pellet targets, which were placed on a bench close to the Claimant’s right ear causing him to sustain a perforated eardrum, noise induced hearing loss and tinnitus as a result of the loud explosion. The hammer used was work equipment, but the pellets were brought into the workplace by the fitter and had no connection to the employees’ or Claimant’s work.
The Claimant sued for personal injury and damage arguing that Tarmac was vicariously liable for the actions of their fitter and was directly liable for negligence for breaching its duty of care to prevent a foreseeable risk of injury.
The Court of Appeal dismissed the Claimant’s appeal. It considered previous case law and whilst accepting that horseplay, ill-discipline and malice could be a mechanism for causing reasonably foreseeable risk of injury, that was not made out on the facts in this particular case. The main question remains whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. The Court held that the lower courts had not erred in their application of law to the facts and the finding of facts, which the Claimant did not challenge, demonstrated that there was not a sufficiently close connection between the act (of horseplay) which caused the injury and the fitter/prankster’s work role to make it fair, just and reasonable to impose vicarious liability. The real cause of injury was due to the explosive pellet targets which did not belong to Tarmac and was no part of the fitter’s work to use pellet targets. Moreover, there was no abuse of power. The fitter had no supervisory or managerial role over the work that the Claimant was carrying out and was not working on the task which the Claimant was engaged on at the time of the injury. The risk created was therefore not inherent in the business. The Court held that on no basis could it be said that the fitter was authorized to do what he did by Tarmac. Neither was his act an unlawful mode of doing something authorized by Tarmac.
Regarding direct liability, it was found that the facts did not support the argument that there was reasonably foreseeable risk of injury to the Claimant by reason of the actions of the fitter. This was due to:
- The tensions that had been reported to Tarmac did not suggest any threat of express or implied violence or actual violence;
- There was no warning or indication that the fitter would suddenly behave as he did;
- The tensions had also eased shortly before the incident;
- No previous complaint had been made of the fitter or indeed any other named individuals;
- The Claimant did not ask to be removed from the site;
- The general site rules stated that ‘no one shall intentionally or recklessly misuse any equipment’ which was a warning against what the fitter did.
Further, the fact that heavy and dangerous tools were available on-site did not, of itself, create a reasonably foreseeable risk of injury due to misuse of such a tool. The Court went further and stated that even if there was a reasonably foreseeable risk of injury, on the facts, the only relevant risk was a general one of risk of injury from horseplay. By virtue of common sense, horseplay was not appropriate at a working site and fitters were hired to conduct their work using reasonable care and skill and it was implied that they would not engage in horseplay or pranks. It would have been unrealistic and unreasonable to expect an employer to have a system in place to ensure that employees did not engage in horseplay.
It remains to be seen whether this case will be appealed to the Supreme Court.
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