The High Court has upheld a County Court decision that an employer was not vicariously liable for the personal injury suffered by a contractor working with one of the employer's employees, caused by the employee's 'practical joke'. Although the incident happened in the workplace during work hours and partially using the employer's work equipment, the employee's actions (bringing in a pellet target and causing it to explode near to the contractor) were outside the scope of his activities carried out during the ordinary course of employment, and he was clearly pursing his own and not his employer's objectives. The fact that work provided the opportunity for the practical joke was not enough to impose vicarious liability on the employer. The judge's decision was consistent with the later Supreme Court ruling in Morrisons (here).
Further, the employer was not directly liable for negligence. Although the employer was aware of tensions between the employees and contractors, there was no foreseeability of risk of injury arising from those tensions and, in the absence of this, there was no duty to risk assess for the possibility of horseplay or practical jokes. it would be unreasonable for an employer to be expected to risk assess generally for horseplay, ill-discipline or malice when a full and comprehensive health and safety assessment addressing specific and more serious general risks was in place. The existing procedures stated that "no-one shall intentionally or recklessly misuse any equipment" and this was sufficient given the multifarious ways in which employees could engage in horseplay, ill-discipline or malice - nothing more specific could reasonably be expected. In the circumstances, increased supervision to prevent horseplay, ill-discipline or malice was also not a reasonable step to expect this employer to have identified and taken. (Chellv Tarmac Cement and Lime Ltd)
Update 15 January 2022
The Court of Appeal dismissed the appeal in this case, agreeing that the employer was not vicariously or directly liable.
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