John Cunningham , experience personal injury lawyer at Hammersmith firm Hubbard Pegman and Whitney explores recent caselaw.

Is an employer directly or vicariously liable for injury caused to a third party after an employee`s practical joke went wrong?

In the recent High Court case of Chell v Tarmac Cement and Lime Ltd (2020) an important decision was made concerning when employers can be held liable for employees horseplay / ill – advised behaviour gone wrong, resulting in a third party sustaining an injury. In making its decision, the High Court had to assess whether the employees wrongful act can be “fairly and properly” regarded as committed by the employee in the ordinary course of his / her employment.

In this case, the Claimant, Mr Chell, was a subcontractor working for the Defendant, Tarmac, on their premises. He was injured when an employee of Tarmac carried out a poorly judged practical joke, setting off explosive pellet gun targets by hitting them with a hammer close to Mr Chells head. As a result, Mr Chell suffered permanent hearing damage. He alleged that he was a target for practical jokes because of tensions between Tarmacs employees and site subcontractors.

Mr Chell alleged Tarmac were directly and vicariously liable for the actions of the employee who carried out the practical joke on him. He alleged that Tarmac should have risk assessed for the foreseeable risk of injury arising from the tensions between their work force and the sub – contractors and otherwise were responsible for the actions of the employee causing the injury.

In assessing the claim, the High Court was mindful of the settled principle that an employer is not liable for the actions of an employee engaged in an activity outside the usual scope of his activities as an employee that did not advance the employer`s goals. The Court decided that it was abundantly clear that the employee was not engaged in furthering his employer`s business when he carried out the misguided practical joke and that therefore, he could not be held to be acting in the ordinary course of his employment.

The High Court concluded that the employer was not directly or vicariously liable for an employee engaging in a practical joke as it was outside the scope of the ordinary course of his employment and that it would not be fair and proper to hold the employer liable for such an act. It was also held that it would be unreasonable for an employer to be expected to risk assess generally for horseplay, ill – discipline or malice.