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Case Review: Vicarious Liability

03 November 2020
This article considers an important judgment which upheld a decision that an employer was not vicariously liable for the injury caused to a contractor following an employee's practical joke.

Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613

The recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613 is the latest in a long line of appeals dealing with the scope of vicarious liability. Vicki Swanton, Partner in the Healthcare team at DWF considers this important judgment in which Mr Justice Martin Spencer upheld a decision that an employer was not vicariously liable for the injury caused to a contractor following an employee's practical joke.

Introduction

Up until 1 April 2020 vicarious liability was 'on the move' with the gradual expansion causing concerns amongst employers, insurers and indemnifiers.   On 1 April 2020 however, the Supreme Court decision in Morrisons Supermakets v Various [2020] UKSC 12, in which DWF acted for Morrisons in their successful defence of a group action for vicarious liability arising out of a mass employee data theft perpetrated by a rogue employee, together with Barclays Bank v Various Claimants [2020] UKSC 13 , halted this onward trajectory and in so doing brought some clarity to the test for establishing vicarious liability. 

Within the healthcare arena vicarious liability is a concept which is often argued where the quality of the healthcare in dispute is provided by a number of organisations and/or individuals.  Chell v Tarmac involved injury following workplace 'horseplay' that went wrong. Thankfully, the facts of the case are fairly unique and it would be unusual for healthcare practitioners to engage in practical jokes in their workplaces causing injury to colleagues or patients, but this case still assists us as it confirms the boundaries that are in place and consistency with recent case law. 

The facts

The Claimant was employed by Roltech Engineering Limited ('Roltech'), and was contracted out to Tarmac as a site fitter and worked alongside other fitters employed directly by Tarmac.  Two of Tarmac's fitters, a Mr Heath and a Mr Starr, having previously been suspended for unrelated reasons, had recently returned to site and there were tensions between the 2 teams of workers, such that some at Tarmac felt that their jobs were at risk and they would be replaced by the Roltech fitters.This provides the context for the incident, which is the subject matter of this claim, which occurred on 4 September 2014, when one of the Tarmac employees, (Mr Heath) hit a pellet target causing a loud noise (his idea of a wholly misguided practical joke) which caused the Claimant to suffer a perforated right ear drum. Mr Heath was subsequently dismissed by Tarmac.

The claim

The Claimant alleged Tarmac were negligent and that they were vicariously liable for the actions of their employee, practical joker, Mr Heath. Interestingly, whilst the Claimant had also initially sued his employer, Roltech, he subsequently served a notice of discontinuance and chose only to pursue Tarmac to trial.

First instance decision

The position on vicarious liability was that before this could be found, there needed to be:

  1. A close relationship between the practical joker and Tarmac 
  2. Sufficient connection between that relationship and the act causing the injury, (hitting of the pellet target)

Judge Rawlings found at trial that whilst there was no problem with the first requirement, the practical joker was an employee of Tarmac, but, in terms of the connection test, this was not made out as there was no foreseeable risk of injury. Although there were tensions in the workplace these were not so serious to suggest there was a risk of violence. The act was a joke (not intended to cause injury) and as such he found that there was not a sufficiently close connection between the risks on site and the actions of the practical joker- enabling him to conclude that Tarmac should not be held vicariously liable for the Claimant's injury. As for any direct duty, he ruled that Tarmac should not be held to be in breach as it was not reasonably foreseeable that the Claimant would be injured by actions of an employee such that they should have taken steps to address that risk.

On this basis the claim was dismissed and the Claimant then appealed.

At appeal

Mr Justice Spencer found that was that there was no error of law by Judge Rawlings, and the Claimant's appeal was dismissed.

On the question of vicarious liability Mr Justice Spencer referenced that since the trial the Supreme Court's decision in Morrisons v Various (see above) had been handed down which  had endorsed the general principle as set out in Dubai Aluminuium Co Ltd v Saalam [2002] UKHL 48 that "The wrongful conduct had to be so closely connected with acts the employee was authorised to do that, for the purposes of liability of the employer to third  parties, it might fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment."

Mr Justice Spencer commented that had Judge Rawlings had the Morrisons v Various Supreme Court decision available to him, that this would have fortified his conclusions and approach. 
As for any direct duty owed by Tarmac to the Claimant, Mr Justice Spencer agreed that "'horseplay, ill-discipline, and malice are not matters that I would expect to be included within a risk assessment" and that in this context it would be expecting "too much" for an employer to devise and implement policies and site rules which descend to legislating for practical jokers.

Points to take away

This is a reassuring decision for all practitioners who have to wrestle with the scope for vicarious liability to be argued in a civil claim as it reinforces that where there is exposure there is a need to ask 2 questions:

  1. What was the relationship between the wrongdoer and those that the Claimant could look to blame for the wrongdoer's act?
  2. If there was a relationship of employment or one 'akin' to employment was the wrongdoer engaged (however misguidedly) in furthering the employer's business or were they furthering their own interests, ie. on a frolic of their own? In the case of the latter then the employer will not be held responsible.
It is also helpful for employers who may be concerned that they could be held to owe a direct duty to contractors injured in the workplace. Whilst there may be situations where this could apply, and factual evidence will be key, they are not expected to be 'telepathic!' 

For further insight and commentary on other leading authorities in this area please see our legal updates below:

Morrisons vindicated: A landmark judgment in data protection and vicarious liability

Court of Appeal finds vicarious liability for violence of managing director during aftermath of company's Christmas party

Vicarious liability is on the move… Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets Plc

Should you have any comments or queries arising from the above, please contact Vicki Swanton.

Further Reading

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