Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7
The Facts
The Claimant was employed as a site fitter for Roltech Engineering Ltd who contracted his services out to Tarmac Cement and Lime Ltd. Tensions arose with Tarmac’s own fitters and the Claimant spoke to his supervisor about the problems he was experiencing with other workers. One of the Tarmac employees, H, as a practical joke hit two pellet targets with a hammer causing a loud explosion close to the Claimant, who suffered a perforated eardrum, hearing loss and tinnitus as a result. The Claimant brought an action against Tarmac, on the basis that the company was liable for negligence and vicariously liable for the actions of H. The trial judge considered a number of authorities which included: Cox v Ministry of Justice [2016] UKSC 10, Muhamud v WM Morrisons Supermarkets plc [2016] UKSC 11, Lister v Hesley Hall Limited [2001] UKHL 22 and Graham v Commercial Bodyworks Limited [2015] EWCA Civ 47. He held that what H did was a prank, unconnected with his employment. H did not intend to cause the Claimant injury, just to make him “jump”. Tarmac were not vicariously liable. Nor were they directly liable, because there was no reasonably foreseeable risk of injury from a deliberate act on the part of H such as gave rise to a duty to take reasonable steps to avoid that risk. Martin Spencer J in Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613 (QB) (covered by Michael Deacon here) upheld that judgment as to both the law and the facts, noting that even if the later decision of Morrisons v Various Claimants [2020] UKSC 12 had been available to the trial judge “he would only have been fortified in the conclusions to which he had come and in his approach to this issue.”
Vicarious Liability
Davies LJ at [25] identified that the fundamental issue was whether H’s wrongful act was done in the course of his employment – “Was it a wrongful act authorised by his employer, Tarmac, or a wrongful and unauthorised mode of doing some act authorised by Tarmac? It is only if the unauthorised act is so connected with what Mr Heath had been authorised to do that it may rightly be regarded as the mode of doing what was authorised.” She held at [26] that the detailed findings of fact were fatal to the appeal, as they demonstrated that there was not a sufficiently close connection between the act which caused the injury and the work of H so as to make it fair, just and reasonable to impose vicarious liability on Tarmac. She referred at [27] to the real cause of the injuries being the explosive pellet targets, which were not part of Tarmac’s work equipment or materials. It was not part of H’s work to use pellet targets. There was no abuse of power as H did not have a supervisory role in respect of the work which the Claimant was carrying out and was not working on the task on which the Claimant was engaged at the time of the incident. Any friction between Tarmac and the Roltec fitters had eased in the run up prior to the incident, there were no threats of violence and the issue of tension was only raised once with a manager employed by Tarmac, and the Claimant had not asked to be taken off the site. Finally, the Claimant did not allege that H had been source of any tension. The risk created by H was not inherent in the business – Tarmac’s business had provided the background and context for the risk and created the ground for it, but that was in itself insufficient to create the close connection, particularly in the absence of other factors.
Davies LJ also held at [28] that H’s activity in no way advanced Tarmac’s purposes and was in no sense within the field of activities authorised by Tarmac.
Direct Liability
Davies LJ held at [33] that horseplay, ill-discipline and malice could provide a mechanism for causing such a foreseeable risk of injury to H. However, it was not made out on the facts. There was no indication of the potential for H to behave in this way. The mere fact that heavy and dangerous tools were available did not in itself create a reasonably foreseeable risk of injury due to misuse of a tool. Further at [36] “Even if a foreseeable risk of injury could be established, on the facts of this case, the only relevant risk which could have been included in an assessment was a general one of risk of injury from horseplay. If it is seriously suggested that there should have been a specific instruction not to engage in horseplay, I regard the same as unrealistic. Common sense decreed that horseplay was not appropriate at a working site. The fitters were employed to carry out their respective tasks using reasonable skill and care, and by implication to refrain from horseplay. It would be unreasonable and unrealistic to expect an employer to have in place a system to ensure that their employees did not engage in horseplay. Further, the general Site rules include a section that “No one shall intentionally or recklessly misuse any equipment”. This was a warning against exactly what Mr Heath did.” Lastly there were no express or implied threats of violent conduct, and no complaints about named individuals.
Comment
This judgment is an example of a broader trend towards tighter judicial control of the ambit of vicarious liability – both by way of not finding any relationship akin to employment, and, as here, by focussing on the practical realities of the relationship between employer and employee, and on the exact nature of the employer’s business, when determining whether an act is properly to be seen to be as within the scope of employment.
