Robert O’Leary considers the issue of vicarious liability following Andrew Chell v Tarmac Cement and Lime Limited  EWHC 2613 (QB)
Robert O’Leary, who appeared for the successful Claimant in Cox v Ministry of Justice  UKSC 10, considers the latest in a long line of appeals dealing with vicarious liability and delineating its boundaries.
“The practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong. Mark Twain was surely right when he said:
‘When grown-up persons indulge in practical jokes, the fact gauges them. They have lived narrow, obscure, and ignorant lives, and at full manhood they still retain and cherish a job-lot of left-over standards and ideals that would have been discarded with their boyhood if they had then moved out into the world and a broader life.’”
So began Martin Spencer J. in his judgment in Andrew Chell v Tarmac Cement and Lime Limited  EWHC 2613 (QB), a case which, once more, brings vicarious liability to the fore.
The Claimant and his brother were employed as site fitters by Roltech Engineering Limited (“Roltech”). They were contracted out to the Defendant, Tarmac Cement and Lime Limited (“Tarmac”) working alongside Tarmac’s own fitters on site which Tarmac controlled and operated. Two of the fitters employed by Tarmac, having been previously suspended for unrelated reasons, returned to the site and, according to the Claimant, tensions then arose between the Tarmac fitters and the Roltech fitters. The Tarmac fitters thought, probably wrongly, that their jobs were in jeopardy and that they would be replaced by the Roltech fitters. The Claimant’s case was that the issue of these rising tensions was raised with his Roltech supervisor in mid-August 2014, and then he, his brother and the Roltech supervisor had a meeting with a Tarmac manager about the situation. The trial judge accepted this evidence, but rejected the Claimant’s further allegation that at the meeting with Tarmac he had asked to be taken off site.
After the meeting, an incident occurred, as a result of which the Claimant was injured. The Claimant was working in the workshop on the site when he bent down to pick up a length of cut steel. One of the two Tarmac fitters had brought two “pellet targets” with him on to the site and he put those on a bench close to the Claimant’s right ear. He then hit them with a hammer causing a loud explosion, causing the Claimant to suffer a perforated right eardrum, noise-induced hearing loss measured at 9-10 decibels and tinnitus. The Tarmac fitter was dismissed from his employment. The Claimant brought proceedings alleging negligence directly against Tarmac and also against Tarmac as being vicariously liable for the actions of its fitter. Tarmac denied the claim on the basis that it was not responsible for the “horseplay” of its fitter.
The only oral evidence before the Court at trial came from the Claimant, his brother and the Roltech supervisor. The Defendant, in a pre-action disclosure application, had asserted that it had no memo or document recording concerns amongst staff about the relations of the Claimant and the Tarmac fitters, or between Tarmac and Roltech, or recording concerns regarding the potential changes in recruitment, threats of redundancy/dismissal, changes in the working practises and/or ill-discipline in the three months prior to the index accident. The Defendant had served two witness statement before trial, but did not call the witnesses. The Claimant relied on their statements at trial to show what should have happened, but did not, at Tarmac when the Claimant raised his concerns, and to prove that Tarmac had been aware of “some concerns and bad feeling from Tarmac employees regarding Roltech staff on site”, albeit being unaware of “any significant or serious tensions on site between Roltech employees and Tarmac employees” sufficient to warrant an investigation.
The parties having agreed that the Tarmac fitter had struck the two pellet targets with a hammer close to the Claimant’s ear, that the pellet targets were brought in by that fitter from outside, but that the hammer used to strike them was work equipment provided by Tarmac, the trial judge held:
- Immediately before the index incident, the Claimant and the Tarmac fitter were not working in the same part of the premises and neither of the Tarmac fitters had any supervisory or other role in relation to the work that the Claimant was carrying out in the workshop at the index time;
- The Tarmac fitters had access to the workshop as part of their role as fitters;
- The index event amounted to a joke at the Claimant’s expense, which was connected with the tensions between the Tarmac and Roltech fitters in the sense that those tensions gave rise to a desire on the part of the Tarmac fitters to play a practical joke on the Claimant;
- From the perspective of the Claimant and his brother, the bad feelings of the Tarmac fitters directed at the Roltech fitters had in fact eased in the period shortly before the index accident occurred.
As to the information Tarmac had before the index incident concerning friction between the Tarmac and Roltech fitters, the trial judge was satisfied that the Claimant and his brother did tell their supervisor about the tensions on site between the Roltech fitters and Tarmac fitters, and that he was satisfied that the tensions related to a fear on the part of the Tarmac fitters, or at least some of them, that they might be replaced by Roltech fitters who were making the Tarmac fitters look bad by appearing to work harder and to be doing a better job than them. However, the trial judge found that the friction between the fitters did not include any express or implied threats of violence. The trial judge also held that the issue of the tension between the fitters was raised once only with the Tarmac manager and the trial judge was not satisfied that the Claimant or his brother asked to be taken off site, because that allegation was not supported by the Roltech supervisor.
On the issue of vicarious liability, the trial judge, having considered the leading cases including Cox v MoJ  UKSC 10 and Mohamud v William Morris Supermarkets PLC  UKSC 11 and Lister v Hesley Hall Limited  UKHL 22, Wilson v Exel UK Limited  SLT 671 , Weddall v Barchester Health Limited  EWCA Civ 25 and Graham v Commercial Bodyworks Limited  EWCA Civ 47, dismissed the claim. He held that whilst the requirement of a close relationship between Tarmac and its fitter was established because of the fitter’s employment by Tarmac, there was an insufficiently close connection between that relationship and the fitter’s act of striking two pellet targets with a hammer close to the Claimant’s ear to make it just that Tarmac should be held responsible for that act. The reasons for that finding were that:
- a) The pellet target was brought on to the site and was not work equipment;
- b) It formed no part of the Tarmac fitter’s work to use let alone hit pellet targets with a hammer at work;
- c) What he did was unconnected to any instruction given to him in connection with his work;
- d) He had no supervisory role in relation to the Claimant’s work and at the index time he was meant to be working on another job in another part of the site;
- e) The striking of the pellet targets with a hammer did not in any way advance the purposes of Tarmac; and
- f) In all those circumstances, work merely provided an opportunity to carry out the prank that he played, rather than the prank in any sense being in the field of activities that Tarmac had assigned to its fitter.
The trial judge further held that he was not satisfied that the tensions between the Roltech and Tarmac fitters, of which Tarmac’s manager was aware, created a sufficiently close connection between Tarmac and its fitter’s practical joke.
The trial judge therefore held that Tarmac was not vicariously liable for its fitter’s actions.
As to Tarmac’s potential direct liability to the Claimant, the trial judge found that there was not a reasonably foreseeable risk of injury from a deliberate act on the part of any Tarmac employee to the Claimant such as to give rise to the duty to take reasonable steps to avoid that risk. The trial judge held:
“Horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment. Those acts, by their very nature, are acts that the employee must know are outside behaviour that they should engage in at work. I do not therefore accept that there was a failure by Tarmac to prepare a suitable and sufficient risk assessment because of its failure to identify in the risk assessments it has prepared the risk posed by horseplay, ill-discipline and malice.”
The claim was dismissed and the Claimant appealed.
The appeal came on before Martin Spencer J. who dismissed it. On the issue of vicarious liability, Martin Spencer J. could “discern no error of law or misapplication of the relevant authorities. On the contrary, in my judgment the exposition of the relevant principles by the learned judge below was exemplary, fully and correctly reflecting the authoritative statements from the recent leading cases” and that he had “appropriately adopted the two-stage test set out at paragraphs 44 and 45 of Lister”.
Martin Spencer J. noted that Morrisons v Various  UKSC 12, decided after the trial, made it “clear that the temporal connection is less significant in itself, with more weight to be attached to the capacity and purported basis on which the perpetrator acts” and endorsed the general principle set out in Dubai Aluminium Co Ltd v Salaam  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 the 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.
Martin Spencer J. held:
“In my judgment, had [the] Judge had available to him the decision of the Supreme Court in Morrisons v Various, he would only have been fortified in the conclusions to which he had come and in his approach to this issue which, he would have found, and I find, was endorsed by the Supreme Court’s judgment.”
The appellate Court, dealing with the direct liability of Tarmac held that the trial judge “was right where he stated … that ‘horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment’”, stating that “this Defendant was an organisation that took health and safety matters seriously, as one would expect. The nature of the business carried out by Tarmac, and the nature of the site in question, meant that there were issues to be addressed which put at serious risk not just the health and safety of those on site but their lives. In this context, it is expecting too much of an employer to devise and implement a policy or site rules which descend to the level of horseplay or the playing of practical jokes. It is true that the learned judge had no evidence that the general site rules or the risk assessment had been specifically drawn to the attention of Tarmac’s employees, but, in my judgment, he was entitled to decline the invitation to draw any adverse inferences against Tarmac arising from such lack of evidence, particularly where the miscreant in this case … had been one of the assessors named in the risk assessment document. On the evidence, I consider that the learned judge was wholly entitled to come to the conclusion is that he did, namely that:
(i) The existing site health and safety procedures which included a section on general conduct stating ‘no-one shall intentionally or recklessly misuse any equipment’ was sufficient given the multifarious ways in which employees could engage in horseplay, ill-discipline or malice and nothing more specific could reasonably be expected; and
(ii) Increased supervision to prevent horseplay, ill-discipline or malice was not a reasonable step to expect this employer to have identified and taken.”
It was an important finding that the Claimant did not ask to be taken off site, revealing that the true nature of the level of concern on the part of the Claimant, and thus being imparted to Roltech and Tarmac, “was significantly lower than that being portrayed, retrospectively, by the Claimant at trial.” The trial judge was, thus, entitled to find that the situation as presented to Tarmac did not merit specific action in relation to the Tarmac fitter where there was no foreseeable risk of injury to the Claimant at his hands.
The appeal was dismissed and confirms that in order for liability to be established, the wrongdoer’s actions must be within the field of activity entrusted to him by his employer. If the wrongdoer is on a frolic of his own, his employer will not be held responsible.
Michael Kent QC’s article, from 2nd April 2020, regarding the Supreme Court’s judgments of Barclays Bank Plc & WM Morrison Supermarkets can be viewed here.