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Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7

Robert O’Leary, who appeared for the successful Claimant in Cox v Ministry of Justice [2016] UKSC 10, considers the latest in a long line of appeals dealing with vicarious liability and delineating its boundaries.

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.

An appeal to the High Court Judge was dismissed: Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613 (QB) (and see the article about that decision here.

The Claimant obtained permission to bring a second appeal in the Court of Appeal.

In delivering the unanimous judgment of the Court, Nicola Davies LJ held that the relevant issue so far as vicarious liability was concerned was whether the Tarmac fitter’s wrongful act was done in the course of his employment. That is, was it a wrongful act authorised by his employer, or a wrongful and unauthorised mode of doing some act authorised by Tarmac. If either of those was answered positively, then Tarmac would be vicariously liable for the wrongful act.

The Claimant took no issue with the judge’s identification of the relevant law and legal principles, but contended that he erred in his application of the law to the facts as found.

Nicola Davies LJ disagreed. She held that the “careful and detailed findings of fact made by the judge, unchallenged by the appellant, are fatal to his appeal. What they demonstrate in that there was not a sufficiently close connection between the act which caused the injury and the work of [the Tarmac fitter] so as to make it fair, just and reasonable to impose vicarious liability on Tarmac” [26].

Her Ladyship held that the real cause of the Claimant’s injury was the explosive target pellet which was not the employer’s equipment; it was no part of the Tarmac fitter’s work to use target pellets; the Tarmac fitter did not have a supervisor role so there was no abuse of power; the findings of fact of the trial judge were that any friction had eased in the run-up to the incident, there were no threats of violence made, and the Claimant did not ask to be removed from site; and lastly the risk created by the Tarmac fitter was inherent in the business [27].

Her ladyship went on to find that there was for no reasonably foreseeable risk of injury from horseplay, ill-discipline or malice that would have rendered Tarmac directly liable to the Claimant. She also held that in the absence of express or implied threats of violence and complaints about named individuals, even if a duty of care existed, it had not been breached by Tarmac.

Nicola Davies LJ therefore held that the appeal should be dismissed, a decision with which Simler LJ and William Davis LJ agreed.

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