Vicarious liability

As all employers and their insurers know, employers can be held liable by the courts for the actions of their employees depending on the precise circumstances of each case. This “vicarious liability” was the subject of an interesting case recently heard by the Court of Appeal in England and Wales, Andrew Chell –v- Tarmac Cement & Lime Ltd, EWCA Civ 7 [2022].

Mr Chell was a fitter sent by his employer to work on the Defendant’s building site. There was some tension on the site between the Plaintiff and the Defendant’s employees. Although this tension on site had resolved somewhat, one of the Defendant’s employees decided to play a prank on the Plaintiff. He brought two explosive pellet targets to the site. He placed them on a bench in a position close to the Plaintiff’s ear and struck them with a hammer, causing an explosion. The Plaintiff sustained injuries, including hearing loss and tinnitus.

The Plaintiff sued the Defendant and argued that it was in breach of its duty of care to him and, secondly, that it was vicariously responsible for the actions of its employee who had struck the target pellets with the hammer. The Plaintiff lost at first instance and appealed to the High Court. He lost his case again but was given permission to take his case to the Court of Appeal.

The unanimous judgment of the three judge Court of Appeal was given on 12 January 2022 and provides an interesting example of the types of issue that courts will consider when deciding if an employer is to be held vicariously liable for the particular actions of an employee and, as a consequence, obliged to pay compensation. Each case will, of course, be decided on its own facts but the decision of the Court of Appeal illustrates the detailed analysis of facts which is required before a case of vicarious liability can be established.

Some of the issues discussed and considered by the court on the vicarious liability issue were:-

• The hammer used by the Defendant’s employee to strike the target was work equipment;
• The pellet targets were not work equipment and had no connection to either the Plaintiff’s work or the work to be carried out by the Defendant’s employee;
• The tensions between the Plaintiff and the Defendant’s employees had eased. In particular, no threats of violence had been made and the Plaintiff had not asked to be taken off site;
• The Defendant’s employee who caused the injury had no work-related reason to be there at the time. He specifically went to the locus to play the prank on the Plaintiff; and
• The employer was not on notice of any reasonably foreseeable risk of injury to the Plaintiff.

Having considered all of the relevant facts, the court concluded that the Defendant was not vicariously responsible for the actions of its employee who had caused the Plaintiff’s injury. The court held that there was no “sufficiently close connection” between the act which caused the Plaintiff’s injury and the employee’s work such as would make it “fair, just and reasonable” to impose liability on the Defendant.

The court relied on a number of specific factors to reach this decision. First, the pellets were not the employer’s equipment. Second, the pellets were not used in the employee’s work. Third, the employer did not authorise what the employee did. Fourth, what the employee did was not “an unlawful mode of doing something authorised by his employer”. In effect, the Defendant’s employee did not carry out this prank in the course of his employment.

The court also rejected the Plaintiff’s case that the Defendant was in breach of its duty of care to him, in particular by failing to have in place a suitable risk assessment. In this case, the Defendant was not on notice of a foreseeable risk of injury to the Plaintiff. As the court said, common sense already decrees that horseplay is not appropriate on a building site. Despite what is often suggested by those acting for Plaintiffs, the absence of a risk assessment is not definitively determinative.

Many cases of alleged vicarious liability will be clear-cut. Many, however, will involve a detailed assessment of factors. The Chell case provides some insight into the assessment process that may be required.

If you would like further information on the issues discussed in this article please contact Aidan Murray or another member of the Defence Insurance Litigation team.