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Employer Avoids Vicarious Liability For The Actions Of Employees

The Court of Appeal has confirmed that employers are not vicariously liable for personal injury in the work place in certain circumstances.

Case Update – Andrew Chell v Tarmac Cement and Lime Limited

Mr Chell was employed by Roltech. His services were contracted out to Tarmac. This had led to some friction between the employees of Tarmac and the employees who were contracted to Tarmac from Roltech as the Tarmac employees believed that the Roltech contractors were there to take their jobs.

While working at one of Tarmac’s sites, a Tarmac employee named Anthony Heath had brought some explosive pellets to the work place for the purposes of playing a prank on Mr Chell. He detonated these by striking them with a hammer very close to Mr Chell’s right ear which caused him to suffer a perforated ear drum, hearing loss and tinnitus.

The Court of Appeal concluded that Tarmac had not breached their duty of care. The pellet target was brought onto the site by Mr Heath and was not work equipment. It was not part of his job to hit the pellet targets with a hammer, this was unconnected to any instruction given to him and did not further Tarmac’s purpose in any way.

In all the circumstances, Tarmac’s work only provided Mr Heath an opportunity to play a prank on Mr Chell. There was no reasonably foreseeable risk of injury as there was no threat of violence and nothing to suggest that Mr Heath was a violent person. Horseplay and ill-discipline are not matters which would be included in a risk assessment. The fact that Mr Heath used a hammer provided by Tarmac as part of his employment, to cause the explosion was purely incidental to the act in question.

Despite this decision, employers should ensure that they have carried out comprehensive risk assessments and provided appropriate training to employees to avoid incidents which may cause harm.

Please feel free to get in touch with our team if you would like any advice on this issue. You can contact one of our specialist employment lawyers directly. Alternatively you can call us on 0115 9 100 200 or click here to send an email.

Posted on January 20, 2022

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