Can an employer be held vicariously liable for the actions of its employees when engaging in horseplay?
Possibly, but not on the facts of this case, held the Court of Appeal in Chell v Tarmac Cement And Lime Ltd.
The Claimant was employed by Roltec Engineering Ltd as a Site Fitter. He worked at a site that was operated and controlled by Tarmac Cement and Lime Ltd. There were tensions between Roltec and Tarmac fitters. A fitter, employed by Tarmac used a hammer to strike a target which he had placed on a bench close to the Claimant's ear causing him to sustain hearing loss and tinnitus.
The Claimant argued that Tarmac was vicariously liable for the actions of their fitter and was liable for negligence for breaching its duty to prevent a foreseeable risk of injury.
The Court of Appeal dismissed the claims. In so doing, it had regard to the principles laid down in Lister v Hesley Hall Ltd and Muhamud v WM Morrisons Supermarket PLC. Whilst accepting that horseplay, ill-discipline, and malice could be a mechanism for causing a reasonably foreseeable risk of injury, that was not made out on the facts in this case.
The fundamental question remains whether the wrongful act is sufficiently related to the conduct authorised by the employer to justify the imposition of vicarious liability.
Thanks to Kate Lea of didlaw for preparing this case summary.