The High Court has rejected a claim that a company was responsible for its employee injuring a site fitter during a practical joke that went wrong.
Andrew Chell had brought a claim for negligence in Chell v Tarmac Cement and Lime Ltd after suffering a perforated ear drum, hearing loss and tinnitus when a colleague detonated two explosive pellets close to his ear.
The practical joker, named as Anthony Heath, was dismissed. His employer Tarmac subsequently denied liability for Chell’s injuries, rejecting the idea that ‘horseplay’ was within the course of Heath's employment.
After a hearing in July, Mr Justice Martin Spencer agreed with the decision of His Honour Judge Rawlings that the company should not be liable.
Chelll had submitted that Tarmac should have considered removing Heath from the site after tensions arose between workers. There were also allegations of failure to provide appropriate supervision or to provide training, instruction and memoranda to prevent horseplay.
Tarmac said that Heath’s actions had been wholly outside the scope of any reasonable foreseeability, risk assessment or health and safety guidelines.
Rawlings had concluded that the airgun target pellets were brought onto the site and that Heath’s actions were unconnected to any instruction given to him in connections with his work. Work ‘merely provided an opportunity to carry out the prank’, it was ruled, rather than the prank being part of his work assignments.
The judge had added: ‘Horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment. Those acts, by their very nature, are acts that the employee must know are outside behaviour that they should engage in at work.’
On appeal, the court heard the claimant argue that Tarmac had failed to supervise Heath and that no reasonable system was in place to maintain discipline. The defendant submitted that health and safety procedures in place were adequate, and increased supervision to prevent horseplay was not a reasonable step for an employer to take.
Spencer found the judge had been right not to find any vicarious liability. Sympathy for the claimant could not form a sound legal basis for a finding of liability, he said.