EMPLOYER’S LIABILITY AND THE PRACTICAL JOKER: THE “LOWEST FORM OF HUMOUR” DOES NOT LEAD TO VICARIOUS LIABILITY

In Chell v Tarmac Cement And Lime Ltd [2020] EWHC 2613 (QB) Mr Justice Martin Spencer upheld a decision that an employer was not vicariously liable for a practical joke in the workplace.

“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.””

THE CASE

The claimant suffered serious injuries to his hearing when a fitter, employed by the defendant, hit a “pellet target” on a bench next to the claimant. This caused a loud explosion and the Claimant suffered a perforated right eardrum, serious hearing loss and tinnitus.

THE JUDGMENT AT TRIAL

The claimant brought an action alleging negligence against Tarmac Directly and also vicarious liability on the part of Tarmac for their employer’s act.  The action did not succeed.

THE CLAIMANT’S UNSUCCESSFUL APPEAL

The claimant’s appeal was unsuccessful.  The trial judge’s decision on vicarious and primary liability was upheld.

Discussion
Vicarious Liability
    1. It is appropriate to start with the issue of vicarious liability. If, as submitted on behalf of the Claimant, the learned judge misdirected himself as to the appropriate test to be applied, then this engages a pure question of law which, in theory at least, is wholly suitable for consideration on appeal.
    2. However, having considered Judge Rawlings’ approach to this question of law, and the principles which he derived from the authorities, as set out in paragraph 52 of his judgment (see paragraph 17 above), I can discern no error of law or misapplication of the relevant authorities. On the contrary, in my judgment the exposition of the relevant principles by the learned judge below was exemplary, fully and correctly reflecting the authoritative statements from the recent leading cases. As submitted by Mr Lyons, the learned judge correctly and appropriately adopted the two-stage test set out at paragraphs 44 and 45 of Lister.
    3. The learned judge did not, at the time of his judgment, have available to him the judgment of the Supreme Court in Morrisons v Various [2020] UKSC 12 which, Mr De Berry concedes, makes clear that the temporal connection is less significant in itself, with more weight to be attached to the capacity and purported basis on which the perpetrator acts. In that case, “S” had worked for the employer as an internal IT auditor, and developed a grudge against the employer. He copied the personal data, including payroll data, of a large number of employees onto a USB stick. He took the stick home and uploaded a file containing the data to a publicly-accessible file-sharing website. He was convicted of various criminal offences. The employees claimed damages from the employer for misuse of private information, breach of confidence, and breach of statutory duty under the Data Protection Act 1998 s.4(4). The judge found that the employer was vicariously liable for S’s wrongful conduct. The Court of Appeal upheld that decision but this was reversed by the Supreme Court which endorsed the general principle as set out in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48: the wrongful conduct had to be so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it might fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment. That principle had to be applied with regard to the circumstances of the case and the assistance provided by the decided cases. The court had to consider two matters. First, it had to ask what functions or “field of activities” had been entrusted by the employer to the employee. Second, it had to decide whether there was sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable. The Supreme Court held that it was clear that “S” was not engaged in furthering his employer’s business when he committed the wrongdoing but rather, on the contrary, he was pursuing a personal vendetta. Lord Reed’s final comments are cited by Mr De Berry in his skeleton argument:
“47. All these examples illustrate the distinction drawn by Lord Nicholls at paragraph 32 of Dubai Aluminium [2003] 2 AC 366 between “cases … where the employee was engaged, however misguidedly, in furthering his employer’s business, and cases where the employee is engaged solely in pursuing his own interests: on a ‘frolic of his own’, in the language of the time-honoured catchphrase.” In the present case, it is abundantly clear that Skelton was not engaged in furthering his employer’s business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta, seeking vengeance for the disciplinary proceedings some months earlier. In those circumstances, applying the test laid down by Lord Nicholls in Dubai Aluminium in the light of the circumstances of the case and the relevant precedents, Skelton’s wrongful conduct was not so closely connected with acts which he was authorised to do that, for the purposes of Morrisons’ liability to 3rd parties, it can fairly and properly be regarded as done by him when acting in the ordinary course of his employment.
    1. In my judgment, had Judge Rawlings had available to him the decision of the Supreme Court in Morrisons v Various, he would only have been fortified in the conclusions to which he had come and in his approach to this issue which, he would have found, and I find, was endorsed by the Supreme Court’s judgment. I reject the suggestion that Judge Rawlings failed to give adequate consideration to the matters set out in paragraph 27 above. In particular, he rejected the suggestion that what Mr Heath was purporting to do was to lighten the mood after recent tensions. The fact that Mr Heath used a work implement, namely a hammer, was rightly regarded as wholly incidental to the act in question. The argument that “the transition from working in the course of his employment to causing the explosion is likely to have been seamless and thus should more readily be understood as something within the course of his employment” appears to me to be essentially a reference to the temporal connection which Mr De Berry conceded is of even less significance since the recent decision of the Supreme Court. In any event, I do not consider that this should have been taken by the learned judge as a significant factor in his evaluation of the situation.
Breach of Duty
    1. So far as the allegations of direct breach of duty against the Defendant are concerned, in my judgment Judge Rawlings was right where he stated, at paragraph 71 of his judgment, that “horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment.” Although I have only quoted from paragraph 13 of the General Site Rules so far in this judgment (see paragraph 25 above), this is only part of a much more extensive document dealing with health and safety including the use of personal protective equipment (safety helmets, steel toe-capped boots, hand protection, eye protection et cetera), the guarding of equipment, the reporting of accidents and incidents and safety rules concerning electricity: the existence of this document shows, as it seems to me, that this Defendant was an organisation that took health and safety matters seriously, as one would expect. The nature of the business carried out by Tarmac, and the nature of the site in question, meant that there were issues to be addressed which put at serious risk not just the health and safety of those on site but their lives. In this context, it is expecting too much of an employer to devise and implement a policy or site rules which descend to the level of horseplay or the playing of practical jokes. It is true that the learned judge had no evidence that the general site rules or the risk assessment had been specifically drawn to the attention of Tarmac’s employees, but, in my judgment, he was entitled to decline the invitation to draw any adverse inferences against Tarmac arising from such lack of evidence, particularly where the miscreant in this case, Mr Heath, had been one of the assessors named in the risk assessment document. On the evidence, I consider that the learned judge was wholly entitled to come to the conclusion is that he did, namely that
(i) The existing site health and safety procedures which included a section on general conduct stating “no-one shall intentionally or recklessly misuse any equipment” was sufficient given the multifarious ways in which employees could engage in horseplay, ill-discipline or malice and nothing more specific could reasonably be expected; and
(ii) Increased supervision to prevent horseplay, ill-discipline or malice was not a reasonable step to expect this employer to have identified and taken.
    1. So far as the specific risk arising from the tensions between the Roltech employees and the Tarmac employees is concerned, it seems to me that the criticisms of Tarmac are very much made with the benefit of hindsight, and that the learned judge was right to view the matter from Tarmac’s perspective, prospectively. It is true that Tarmac were aware of tensions between the two sets of employees and it is true that there was no evidence from the Defendant as to the steps Tarmac had taken to avoid or reduce those tensions. Furthermore, I take on board the point made by Mr De Berry arising from the evidence of Miss King that what she says would have happened can be translated into what should have happened in the absence of evidence that what she said would have happened did in fact happen. But the finding of the learned judge that the Claimant did not in fact ask to be taken off site is an important one: it reveals that the true level of concern on the part of the Claimant, and thus being imparted to Mr Gane and through him to Tarmac, was significantly lower than that being portrayed, retrospectively, by the Claimant at trial. The learned judge was, in my judgment, entitled to find that the situation as presented to Tarmac did not merit specific action in relation to Mr Heath where there was no foreseeable risk of injury to the Claimant at the hands of Mr Heath. Furthermore, the learned judge’s findings in relation to vicarious liability impinge on this aspect too: if Mr Heath was acting in a way wholly unconnected with his employment, but for his own purposes and “on a frolic of his own”, then it is more difficult to argue that the employer should have taken steps to avoid such behaviour.
Conclusion
  1. In the circumstances, and despite the able arguments of Mr De Berry on behalf of his client, I take the view that the learned judge was right as a matter of law in relation to the issue of vicarious liability, and that he applied the law appropriately to his findings of fact, and that his conclusions in relation to the allegations of direct breach of duty on the part of Tarmac were ones to which he was entitled to come on the basis of his findings of fact. Furthermore, I do not accept that the findings of fact made by the learned judge were flawed, whether in relation to the actual findings he made or in relation to the findings which it is argued he should have made but did not. Reading the judgment as a whole, I came to the firm conclusion that the learned judge had considered the issues in this case properly, carefully and conscientiously, and that the judgment is not one susceptible to appeal. I have no doubt that the learned judge reached his decision not without some significant regret, given the misfortune that befell the Claimant and the circumstances in which the injury came to be sustained. I too have some significant sympathy for the Claimant in this regard, but sympathy cannot found a sound legal basis for a finding of liability. This appeal must be dismissed.