The claimant was employed by Roltech Engineering Ltd as a site fitter and he was contracted out to the defendant along with his brother.   The defendant also employed its own fitters who worked alongside the claimant and his brother.   There was some consternation between the Roltech brothers and the site fitters employed by the defendant as there was an unsubstantiated worry that their jobs may be at risk.

The incident which led to the proceedings took place on 4th September 2014 when the claimant bent down to pick up a length of cut steel.   Mr Heath, one of the employees of the defendant, had brought two ‘pellet targets’ onto the site and he placed them on a bench near the claimant.  As the claimant bent down, Mr Heath hit them with a hammer causing a loud explosion.  This was supposedly a practical joke.   The result according to the Judge was no joking matter with the claimant suffering a perforated eardrum, noise induced hearing loss and tinnitus. The County Court held that the defendant was not liable for the actions of the employee and this decision was appealed to the High Court.  In Spencer J’s judgment he started by referring to the following Mark Twain quote:

"When grown-up persons indulge in practical jokes, the fact gauges them. They have lived narrow, obscure, and ignorant lives, and at full manhood they still retain and cherish a job-lot of left-over standards and ideals that would have been discarded with their boyhood if they had then moved out into the world and a broader life."

This clearly demonstrates the approach of the learned Judge to the suggestion of a practical joke and the position that he takes.  It is possibly one that we also take when we are going about the workplace.   The issue to be decided was whether the defendant, as employer, were vicariously liable for the actions of Mr Heath in carrying out this ‘practical joke’.

In making his decision, the Judge referred to the recent Supreme Court decision in Morrisons v Various Claimants [2020] where the principle in Dubai Aluminium v Salaam [2002] was upheld requiring that the wrongful conduct must be so closely connected with the acts the employee was authorised to do that the employer would be liable to third parties.  Indeed, the language used in the older cases was also mentioned and asked whether the employee had engaged on a ‘frolic of their own’.  Whilst the County Court decision was made prior to the judgment in Morrisons, Spencer J stated that it would have fortified the conclusion that was reached, that being that the employer is not liable for the practical joke.  Indeed, it was held that the fact Mr Heath had used a work implement, namely a hammer, was wholly incidental to the act in question.   Furthermore, the fact that the incident seamlessly took place from a time of work was of less significance and the question is not a temporal one.  Accordingly, whilst the Judge had significant sympathy for the claimant’s situation it was held that the employer was not vicariously liable for the actions of the employee.

Practical Lessons

The area of vicarious liability has been like a pendulum swinging between claimants and employers.   This case is part of the swing in favour of the employer with an application of the requirement that the action must be closely connected with the acts the employee was authorised to do.  With other more recent cases, the lines have been blurred as seen with Mohamud v Morrison Supermarkets which was seen as casting the net ever wider for employers to be liable for the acts of their employees.  The tightening of liability from Morrisons v Various Claimants and now with this case will be welcomed by employers.
https://www.bailii.org/ew/cases/EWHC/QB/2020/2613.html

For a review of the Court of Appeal decision in this matter please click HERE”