· News

Chell v Tarmac: Court of Appeal denies vicarious liability for prank gone wrong

The Court of Appeal yesterday (12 January) upheld the High Court’s decision that building materials company Tarmac was not liable for injuries suffered by a member of staff as a result of an employee prank.

The High Court had originally decided that Tarmac was not vicariously liable for the injuries its employees had caused to Mr Chell.

Vicarious liability is the principle whereby employers can be held liable for any civil (i.e. not criminal) offence committed by an employee in the course of their duties.

In this case, Tarmac employee, Mr Heath, struck some explosive pellet gun targets with a hammer as a prank, injuring Mr Chell in the process and giving him hearing loss and tinnitus.

As the pellet target was not work equipment issued by Tarmac, and hitting them not part of an employee’s duties, appeals judge Justice Nicola Davies found that the employer could not be held vicariously responsible for the injuries Mr Chell had sustained.

Employment law:

Strikes return after pandemic reprieve

Petty or not – ignore grievances at your peril

2022 employment law outlook

Matt Jenkin, employment partner at law firm Moorcrofts told HR magazine that the ruling was to be expected.

He said: “The decision of the Court of Appeal that Tarmac were not vicariously liable for the injuries caused to Mr Chell as a result of his colleague’s “horseplay”, was not, in my view, a huge surprise.

“Given the findings made by the High Court judge and the judge’s comprehensive application of the law, it did appear that the claimant faced a difficult task in his appeal.”

In a similar ruling on 10 January, the High Court found that Manchester City Football Club could not be held vicariously responsible for the abuse suffered by eight boys between 1979 and 1985 at the hands of their coach Barry Bennell.

Given both decisions Jenkin added: "Employers may be thinking that the risk of being held liable for the actions of their employees has narrowed.”

However, he continued by warning that it would be dangerous for employers to assume they are not liable for the harmful actions of staff.

He said: “These cases are very fact dependent and employers need to ensure that they have in place safe systems of work that are designed to prevent this type of horseplay.” 

Joe Aiston, employment senior associate at law firm Taylor Wessing, said Chell v Tarmac ruling was common sense.

He said: “The acts in question are clearly unrelated to the employee's assigned responsibilities – a practical joke gone wrong – so the employer is not liable.

“However, this leaves this injured party, and any other similar future cases, in a potential legal black hole, unable to seek recourse from anyone for injuries genuinely sustained in a workplace."

He added: “There are also likely to be scenarios where the assessment of whether an employee's actions were carried out in the course of their employment is more debatable and an employer may be at risk of being held vicariously liable.”

Employers, Aiston said, have a duty to protect the health and safety of employees and third parties who work on site.

“All employers should ensure they are fully aware of their health and safety responsibilities and that their policies and procedures are fully up to date."