Horseplay OK?

4 March 2022

Employers will no doubt be breathing a large collective sigh of relief at the recent Court of Appeal decision in Chell v Tarmac Cement upholding the decisions below. In that case an employee put two pellet targets on a bench close to the appellant’s right ear and hit them with a hammer causing a loud explosion next to his ear. As a result, the appellant suffered injury, a noise induced hearing loss in his right ear and tinnitus. He claimed that his employer was vicariously liable for his injuries.

The findings of fact in the County Court included that the employee’s actions represented a joke at the appellant's expense, and that the employee did not intend to cause injury to the appellant who accepted it was a joke gone wrong.

Essentially, there were 2 issues for the Court of Appeal. Firstly, was the “joke” done in the course of employment? Here, among other cases the Court of Appeal relied upon Dubai Aluminium where it was held that, for the employer to be vicariously liable, there must be a sufficiently close connection with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment. It found that there was no such close connection here.

Secondly, was the employer in breach of its duty of care to the appellant? Here it was held that it must be shown that there was a reasonably foreseeable risk of injury to the appellant by reason of the actions of the employee. While it was accepted that horseplay could provide a mechanism for causing such a reasonably foreseeable risk, the Court of Appeal held that it was not made out on the facts of this case.   


Authors

Melvyn Harris

Call 1997

Related areas

Employment

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