The claimant appealed against a decision that the defendant, his employer, was not vicariously liable for the actions of an employee who had sprayed his overalls with an inflammable substance and then used a cigarette lighter in his vicinity.
The claimant’s co-worker was a long-standing friend and there was no intention to cause harm. The claimant described the incident as “horseplay”.
The claimant alleged that the defendant had created the risk of injury to its employees by requiring them to work with an inherently dangerous substance, and that the risk of injury from misuse of that substance was inherent in the nature of the business. Therefore, the co-worker’s conduct was so closely connected with what he was employed to do that the defendant should be held vicariously liable.
The claimant’s appeal was dismissed.
The relevant test is whether the co-worker’s conduct was “so connected” with acts which the defendant authorised that they might be regarded as modes (albeit improper modes) of doing them.
On the facts, although the defendant did create a risk by requiring its employees to work with thinning agents, it could not be said that the creation of the risk was so closely connected with the co-worker’s reckless act of splashing the thinner onto the claimant’s overalls and then using a cigarette lighter in his vicinity.