EMPLOYER NOT LIABLE FOR EMPLOYEE’S PRACTICAL JOKE GONE WRONG
Thursday 12th November 2020
In Chell v Tarmac Cement and Lime Ltd, the High Court considered whether an employer was liable for an injury caused to a third party after an employee’s practical joke went wrong.
The claimant (C) was a subcontractor working for Tarmac (T) on their premises. One of T’s employees carried out a practical joke, setting off explosive pellet gun targets close to C’s head by hitting them with a hammer and causing C to suffer permanent damage to his hearing. C alleged that he was targeted due to tensions between the workforce and subcontractors.
C claimed that T was directly and vicariously liable for the employee’s actions on the basis that T should have risk assessed for the foreseeable risk of injury arising from the tensions between the two groups, and that T was responsible for the actions of the employee.
In coming to his decision, the Judge considered that the pellet gun target was not work equipment and had been brought on site by the employee, using the pellet gun targets formed no part of the employee’s normal duties, hitting the target with a hammer as a practical joke did not advance the employer’s goals, and the fact C and the employee were on T’s premises at the same time only provided opportunity for the practical joke rather than the it being within the employee’s usual activities.
Notwithstanding the tension between the workforce and subcontractors, there was no suggestion of fear for the safety for any individual. The Judge found that there was no foreseeable risk of injury, so there was no duty for T to risk assess to that effect.
It was held that the employer was not liable, directly or vicariously, for the employee engaging in the practical joke as the employee was on a ‘frolic of his own’ and the joke was outside the ordinary course of his employment.
This case highlights that practical jokes are likely to be outside the scope of activities that employers should carry out risk assessments for and that, provided they are not connected with the employee’s usual duties, employers are unlikely to be found directly or vicariously liable for injuries arising when they go wrong.
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