Chell v Tarmac Cement and Lime Ltd is the latest case to examine whether an employee’s actions were in the course of their employment, making their employer vicariously liable for personal injury to another person that results from those actions. It also considers whether an organisation had breached its duty to take steps to prevent a foreseeable risk of injury to someone working on its site.
In 2014 Mr Chell was working at a site operated by Tarmac. He was employed by Roltec Engineering Ltd, which was providing services to Tarmac. There was a degree of friction between Tarmac and Roltec employees. After a Tarmac employee deliberately hit pellet targets with a hammer very close to Mr Chell’s ear, apparently as a practical joke, the subsequent explosion caused him 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, Mr Heath. That claim and a subsequent appeal failed and Mr Chell appealed to the Court of Appeal.
The Court of Appeal confirmed that after the UK Supreme Court's decision in Morrisons v Various Claimants, 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 county court judge had 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:
- Mr Heath brought the pellet targets that caused the injury onto site, they were not provided by the employer 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 friction 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.
In no sense was Mr Heath’s conduct within the field of activities authorised by Tarmac. 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.
Duty of care
The second issue in the case was whether Tarmac was liable to Mr Chell because it had breached its duty to take steps to prevent a foreseeable risk of injury. In particular, Mr Chell argued that the tension between Tarmac and Roltec employees made injury as a result of horseplay or malice reasonably foreseeable.
The Court of Appeal rejected that argument 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 horseplay. It was sufficient for the employer to have given employees a general warning that they should not intentionally or recklessly misuse any equipment.
Authored by Jo Broadbent and Stefan Martin.