Chell v Tarmac Cement and Lime Limited  EWHC 2613 (QB)
If, for reasons best known to themselves, anyone were tempted to engage Spencer J in a practical joke, they may wish to take heed of the opening words of his recent personal injury appeal judgment in Chell v Tarmac Cement and Lime Limited  EWHC 2613 (QB):
“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.””
One can well understand Spencer J’s ire at the very concept of a prank when the facts of the case which came before him are considered.
The Claimant’s services as a fitter were contracted out to the Defendant company (“Tarmac”) by his employer (“Roltech”). There had been on-site tension between Tarmac’s own fitters and Roltech’s fitters, a matter which the Claimant had raised with Tarmac’s site supervisor.
In September 2014 one of Tarmac’s own fitters, Mr Heath, demonstrated that he had failed to discard the standards of his boyhood by detonating two explosive pellets next to the Claimant. This was apparently intended as a practical joke but the Claimant, at the age of 34 years, was left with a perforated right eardrum, noise-induced hearing loss and tinnitus. Mr Heath, who also had a role as a health and safety assessor, was dismissed.
The decision at first instance
The Claimant brought a personal injury claim against Tarmac. The key issues at trial before HHJ Rawlings were, first, whether Tarmac was vicariously liable for the actions of Mr Heath, its employee, and secondly, whether Tarmac itself owed a direct duty to the Claimant to take reasonable steps to prevent his injury, and whether it was breached.
Both issues were decided in Tarmac’s favour.
In relation to vicarious liability, applying the second stage of the test set out in Lister v Hesley Hall Limited  UKHL 22, the judge found that there was not a sufficiently close connection between, on the one hand, the employer/employee relationship that existed between Mr Heath and Tarmac and in particular the field of activities entrusted to Mr Heath and, on the other, the practical joke. That conclusion was founded, inter alia, on the findings that:
- The practical joke did not form part of, and was unconnected to, Mr Heath’s work, and the explosive pellets were not site equipment but rather were brought to work by Mr Heath. As HHJ Rawlings put it: “…work merely provided an opportunity to carry out the prank…rather than the prank in any sense being in the field of activities that Tarmac had assigned to Mr Heath.”
- While Tarmac had been made aware of tensions between the Tarmac fitters and the Roltech fitters, there had been no suggestion that those tensions might lead to physical violence and, in any event, the intention of Mr Heath had been humour rather than harm.
That there had been no indication that Mr Heath might be violent or volatile was also a key factor in the finding that there was not a reasonably foreseeable risk of injury from a deliberate act on the part of any Tarmac employee, and therefore there had been no duty on Tarmac to take reasonable steps to avoid that risk. HHJ Rawlings also found that, even if there had been such a duty, there would not have been a breach, because the site health and safety procedures had prohibited intentional or reckless misuse of equipment.
The decision on appeal
The Claimant’s appeal to Spencer J was entirely unsuccessful.
In relation to vicarious liability, the Claimant argued that although HHJ Rawlings correctly identified the “close connection” test, he applied it too narrowly in that he wrongly excluded inter alia the following from his analysis:
- Mr Heath’s evidence was that the prank had been intended to lighten the mood following recent tensions. Therefore, the prank arose out of an issue germane to Mr Heath’s employment, which Tarmac had failed to address.
- The transition from regular working activity to the prank must have been seamless, and therefore was connected to Mr Heath’s employment.
In reality, rather than a challenge on a point of law, this appears to have been an argument that the trial judge gave insufficient weight to factors said to be in the Claimant’s favour and excessive weight to those said to be in Tarmac’s favour. Such arguments are often an uphill battle, and Spencer J could find no fault in HHJ Rawlings’ analysis. Further, Spencer J found that the trial judge’s conclusions were strengthened by the Supreme Court’s decision in Morrisons v Various  UKSC 12 in two respects:
- Lord Reed in Morrisons had reiterated the importance of the distinction between an employee who commits an act (however misguidedly) to further his employer’s interests and one who commits an act to pursue his own interests. The present case was a clear example of the latter.
- The decision in Morrisons, as counsel for the Claimant was forced to concede before Spencer J, reduced even further the significance of any temporal connection between the act complained of and the employment.
Spencer J also rejected the Claimant’s argument that the judge had been wrong to find that there was no direct duty on Tarmac and no breach of the same, endorsing HHJ Rawlings’ reasoning.
While decided on its facts, this case is of assistance as a recent application of the law on vicarious liability, following Morrisons, to a situation where a practical joke in the workplace caused injury (not an uncommon occurrence). The way in which the “close connection” test is analysed is of broader assistance.
Further, it is noteworthy that, although rejected, Mr Heath’s evidence was that he played the prank to improve workplace relations. Had that evidence been accepted, one could conceive of an argument that the prank was played to further his employer’s interests, and therefore the connection between the prank and his employment was sufficiently close. The other factors at play – including that the prank was not connected to the tasks involved in Mr Heath’s employment – may have proved decisive in any event, but it seems possible following Morrisons that the altruistic prankster may yet leave an employer with damages to pay.
Whether Spencer J would look more kindly on such a practical joker is open to interpretation.