Vicarious liability for horseplay?

In most cases, establishing vicarious liability presents no difficulty, but at the margins the problems are real. One of the marginal issues is injury to the plaintiff through the activities of an employee designed for his own benefit, not for the purose of the employer's business. Horseplay of a fellow employee is part of this problem area and it is the purpose of this article to examine two cases on that particular matter to see what principles apply.
Harrison's case
The starting point is the decision of Comyn J in Harrison v Michelin Tyre Co Ltd [1985] 1 All ER 918. Comyn J thought the case revealed, 'circumstances not covered . . . by any decided case' and that it was a 'case . . . singular also in the fact that it is literally a frolic which the defendants rely on'. The plaintiff employee was working on the duck-board of his machine. The fellow employee (let us call him the joker) was pushing a hand-truck along a passageway marked by chalk lines. In order to startle the plaintiff the joker turned his truck slightly towards the plaintiff and overstepped the chalk lines by some two inches. The truck caught the edge of the duck-board, tipped it upwards and caused the plaintiff to be thrown off. He suffered injuries and damages were agreed at £4000.
The joker had been authorised to push the truck and was in the course of so doing when the urge to play the practical joke overcame him. The matter was quite simple; was the joker acting in the course of his employment, or had he embarked, in the words of Parke B in Joel v Morrison (1834) 6 C & P 501, on a frolic of his own? Comyn J took the view that the employer was vicariously liable for the act of the employee-joker. The task was admitted to be difficult, but it is, with respect, suggested that, whatever the reasoning or the difficulty, the result was correct.
The approach adopted by Comyn J was to ask, ' . . . was the incident part and parcel of the employment in the sense of being incidental to it although and albeit unauthorised or prohibited . . . or was it so divergent from the employment as to be plainly alien to and wholly distinguishable from the employment?' The facts relied on by the judge were that it was the employer's truck, it was their factory, it happened only two inches off the passageway, and the joker was employed to move the truck.
Aldred v Nacanco
In the more recent case of Aldred v Nacanco [1987] IRLR 292 the Court of Appeal ha d opportunity to consider the approach of Comyn J. Once again a joker took it upon herself to startle a fellow employee. On this occasion, in the washroom of the defendant employer and at the end of a day's work, the plaintiff was washing her hands when the joker pushed an adjacent washstand, which she knew to be loose, against the plaintiff. The plaintiff turned to see what was going on and in so doing twisted her back causing serious injury.
At first instance the judge found that the actions of the joker were 'something quite outside . . . the scope or the context of her employment'. However, the judge went on to say, 'she was not doing something for the purposes of her employment, for the purposes of her employer's business'. In the light of the many cases where vicarious liability has been found despite the fact that what the employee had done was not in the promotion of the employer's business but for his own pleasure (eg smoking during the offloading of petrol, see Century Insurance v NIRTB [1942] 1 ALL ER 491) did this comment prejudice the finding of no vicarious liability? The Court of Appeal confirmed that it did not.
Proper approach
In so doing the Court of Appeal made important observations as to the proper approach for first instance courts to adopt in those cases where the disputed behaviour has been forbidden, expressly or impliedly, by the employer:
'The first task of the judge is to consider what is the proper principle of law and then to apply it to the facts of the case before him . . . The judge has to look at the nature of the case, the circumstances in which the act for which the employer is alleged to be vicariously responsible was done, the reason why it was done and the like. There is a whole range of aspects to which attention must be paid.'
What then is the guiding principle? The Court of Appeal regarded it as encapsulated within the following passage in Salmond & Heuston on the Law of Torts (see now 19th Edition 521-522):
'It is clear that the master is responsible for acts actually authorised by him . . . But a master . . . is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they might rightly be regarded as modes -- although improper modes -- of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it . . . On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it.'
The test propounded by Comyn J in Harrison v Michelin was not approved since it allowed too broad a range of interpretations, including that of counsel for the plaintiff which would have led to the defendant being liable for the act of the joker if she had, in the words of the Master of the Rolls, 'knifed the plaintiff'. The classic test was that described in Salmond & Heuston.
The next step is to apply that principle to the relevant facts, such as the time, place and nature of the act, whether it was for the benefit of the employer, whether it was intentional, wilful or malicious, whether it was expressly or impliedly authorised. In Aldred v Nacanco, the act of the joker 'had nothing whatsoever to do with anything she was employed to do. It was not an improper way of doing her job, it was s omething wholly ouside her job'. The fact that what she did was done for her own benefit and not that of the employer was one of the many factors to be considered. Harrison v Michelin concerns a different set of facts which indicate that Comyn J was correct as to the result if not the reasoning. In Aldred v Nacanco there was no nexus between the tortious act and the circumstances of the employment; the latter merely presented the opportunity for the act to be committed.
Conclusion
What is the practitioner to make of these cases? The first and most important point is that what Comyn J described as 'the judge's perpetual and lazy search' for 'some case which would decide this one for me', is a search which the practitioner need not undertake. Secondly and consequently, the detailed examination of a long line of conflicting and seemingly irreconcilable cases is unnecessary. The matter is to be decided on principle and the facts of the case. The cautionary note sounded by Sir Frederick Lawton in Aldred v Nacanco is worthy of report, ' . . . a detailed examination of other cases decided on other facts does not help in this class of case'. Thirdly, cases on jokers fall to be decided on the same principle as any other unauthorised act, ie that principle laid down in Salmond & Heuston. Finally, nothing in this article has been intended to relate to the distinct issue of the personal common law liability of the employer. It is quite clear that in appropriate cases it may be possible to find the employer personally, not vicariously, liable; for example by failing to employ competent employees, to supervise where necessary or to provide a safe system of work. Continuing to employ a known prankster can be a clear case of personal liability: see Hudson v Ridge Manufacturing Co Ltd [1957] 2 All ER 229.