Is an employer liable when a practical joke goes wrong?
The short answer is “it depends”.
There have been a number of cases over the last few years regarding the scope of the doctrine of “vicarious liability”. This principle provides that an employer can be held liable for the wrongdoing of its employees against colleagues, customers or even members of the public where there is a sufficiently close connection to the workplace.
Facts
In the case Chell v Tarmac Cement and Lime Ltd, Chell, a site fitter, was a contractor working at one of Tarmac, Cement and Lime Limited’s (TCL) quarry sites. TCL also employed its own fitters. The employees were concerned that their roles were at risk and this resulted in tensions between them and the contractors. Chell raised his concerns about this tension with his supervisor but was happy to continue to work on site. Some weeks later one of TCL’s employees (H) played a prank on Chell – he put some pellet targets on a workbench near Chell’s ear and hit them with a hammer causing them to explode and perforate Chell’s ear drum. As a result, Chell suffered hearing loss and tinnitus and claimed damages for personal injury from TCL on the basis it was vicariously liable for H’s actions and directly liable for breaching its own duty of care to prevent a foreseeable risk of injury. He maintained that TCL should have removed one of them from the site or separated the employees and contractors and that there was insufficient supervision or training to prevent “horseplay”.
Decision
Chell’s claim was rejected in the country court on both grounds. The Judge concluded there was not a sufficiently close connection between the risk posed by the tensions between the workers and H’s wrongful act such that TCL should be vicariously liable nor was it reasonably foreseeable that there was a risk of injury to Chell from a deliberate act of horseplay.
An appeal to the High Court was also unsuccessful.
Chell appealed to the Court of Appeal (CA) but that too was dismissed. The Court of Appeal noted that for TCL to be vicariously liable for H’s wrongful act, it either needed to be done in the course of H’s employment (and authorised by TCL) or be an unauthorised way of doing something authorised by TCL.
The Court of Appeal found that H was not authorised to conduct his prank. Therefore, the prank had to be an unlawful way of doing something authorised and there had to be a “sufficiently close connection” between the prank and H’s work to make it fair, just and reasonable to make TCL vicariously liable.
Comment
These cases are fact sensitive but this decision will be reassuring to employers in that it makes it less likely that employers will be liable for a practical joke that goes wrong at work. The key points in this case were that the incident was unconnected to H’s work, not due to an abuse of power and not due to the friction reported on site. This case also demonstrates the importance of effective risk assessments.
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