Where an employee’s wrongful actions were in the course of their employment, their employer can be vicariously liable for personal injury to another person resulting from those actions.
In Chell v Tarmac Cement and Lime Ltd the Court of Appeal has considered whether there was a sufficiently close connection between an act which caused an injury and the employee’s work.
Andrew Chell was employed by Roltec Engineering Ltd, which provided services to Tarmac. In 2014 Mr Chell was working at a site operated by Tarmac. There was some tension between Tarmac and Roltec employees. After a Tarmac employee, Mr Heath, deliberately hit pellet targets with a hammer very close to Mr Chell’s ear, apparently as a practical joke, the subsequent explosion caused Mr Chell to suffer noise induced hearing loss and tinnitus.
Mr Chell brought a personal injury claim against Tarmac, arguing that it was vicariously liable for the actions of its employee.
The Court of Appeal confirmed that the correct approach is to ask whether an employee was acting in the course of their employment when they carried out the act complained of. This depends on whether their conduct is so closely connected with acts that they were authorised to do that it is fair and proper to regard the conduct as done in the ordinary course of employment.
The Court identified a number of factors that indicated that Mr Heath's act was not sufficiently closely connected to his employment for it to be fair, just and reasonable to impose vicarious liability on Tarmac:
- The pellet targets were brought on to site by Mr Heath. They were not provided by Tarmac and he did not need to use them to carry out his duties;
- Mr Heath had no supervisory responsibility for Mr Chell and was not working on a task with Mr Chell at the time of the incident;
- If there was tension between the two groups of employees, it did not involve threats of violence and did not specifically relate to Mr Heath; and
- The risk of the incident was not inherent in the business; it simply provided its background and context and in the absence of other factors this was insufficient to create the close connection required.
Mr Heath’s conduct was not within the field of activities authorised by Tarmac, so it was not liable for the consequences of his actions when he chose to hit pellet targets, which were not work equipment and formed no part of his work, with a hammer.
Mr Chell also argued that the tension between Tarmac and Roltec employees made injury as a result of horseplay or malice reasonably foreseeable. Mr Chell’s argument was unsuccessful here too. There was no suggestion that the tension between the two groups included threats of violence, let alone actual violence, so the injury was not reasonably foreseeable. Even if it had been, it was unrealistic to expect that Tarmac should have specifically instructed employees not to engage in practical jokes. It was enough for the employer to have given employees a general warning that they should not intentionally or recklessly misuse any equipment.
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Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.
Copyright © 2022 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.
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