The Supreme Court has rejected an application by a claimant for permission to appeal in a case involving personal injury following an act of dangerous horseplay by the defendant’s employee.
The Court of Appeal dismissed the second appeal in Chell v Tarmac Cement and Lime Limited  EWCA Civ 7, finding that the employer was not liable for a misguided practical joke by an employee on a subcontractor which resulted in an injury. The risk of injury was not reasonably foreseeable, and so there was no duty on the employer to take steps to reduce the risk of such activity. Furthermore, it was unrealistic to expect any employer to implement a risk assessment process for general misbehaviour. As for vicarious liability, the act was not sufficiently closely connected to the employee’s work for vicarious liability to attach.
A link to the Law-Now reporting on the Court of Appeal’s decision can be found below:
The Supreme Court’s refusal of permission to appeal further narrows the scope for establishing vicarious liability and clarifies the approach to be taken when assessing an employer’s direct liability for “horseplay” incidents. It firmly establishes, in particular, that there will be circumstances that amount to unauthorised and unforeseeable acts by individuals for which employers cannot be held liable. The rejection also confirms that foreseeability is still required for workplace actions such as practical jokes that result in harm for an employer to be directly liable, and that general social factors, or the mere possibility of workplace tension, do not create that foreseeability.
CMS acted for Tarmac, instructing Patrick Limb QC and Andrew Lyons of Ropewalk Chambers.