These were the opening remarks of Mr Justice Martin Spencer when handing down his Judgment in the recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613, the latest in a series of appeals dealing with the scope of vicarious liability.
‘The Practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong’.
These were the opening remarks of Mr Justice Martin Spencer when handing down his Judgment in the recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613, the latest in a series of appeals dealing with the scope of vicarious liability.
The Claimant was sub-contracted to work as a site fitter for Tarmac, alongside Tarmac’s own employees. According to the Claimant, tensions arose between the Tarmac employees and the sub-contracted fitters, to the extent that the Claimant raised this with his Supervisor. A few weeks later, one of Tarmac’s employees brought 2 pellet targets onto site and hit them with a hammer next to the Claimant’s right ear as a practical joke.
The Claimant suffered a perforated right eardrum, noise induced hearing loss and tinnitus as a result. Tarmac dismissed their employee accordingly.
HHJ Rawlings heard the Trial at first instance in October 2019.
Two key issues were to be determined; whether Tarmac were vicariously liable for the actions of their employee and whether Tarmac were in breach of their duty of care to the Claimant.
When assessing if Tarmac were vicariously liable for the actions of their employee, HHJ Rawlings applied the well-known two limb test set out in Lister v Hesley Hall Limited 2001:
HHJ Rawlings found that there was not a ‘sufficient connection’ to make it just that Tarmac should be held responsible. A number of reasons were cited, with the combined effect demonstrating that there was no real connection between the nature of the work and the practical joke, rather the workplace had merely provided an opportunity to carry out the prank.
HHJ Rawlings helpfully commented that if the tensions on site had suggested the risk of physical violence and the act carried out by the Tarmac employee had been a deliberate violent act, this would have created a ‘sufficient connection’. However, he found that the tensions consisted of verbal confrontation only and the act was merely intended to be a joke. As such, this does not form a sufficiently close connection so as to make it right to hold Tarmac liable.
Turning to Breach of Duty, HHJ Rawlings found that there was not a ‘reasonably foreseeable risk of injury from a deliberate act’ on the part of any Tarmac employee to the Claimant ‘such as to give rise to the duty to take reasonable steps to avoid that risk’. Even if such a duty had been established, HHJ Rawlings considered that Tarmac had not breached that duty because it is not reasonable to expect an employer to identify the risk of ‘horseplay, ill-discipline and malice’ or take steps to avoid such risks.
The Claimant’s claim was therefore dismissed.
The Claimant’s appeal came before Mr Justice Martin Spencer who handed down his Judgment on 5 October 2020.
Mr Justice Martin Spencer was assisted in his considerations by the Supreme Court’s recent Judgment in Morrisons v Various 2020, which HHJ Rawlings had not had the benefit of.
The Supreme Court’s Judgment re-enforced the general principle set out by Lord Nicholls in Dubai Aluminium v Salaam 2002, that ‘the wrongful conduct must be so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment.’
The Supreme Court’s decision is a further reminder of the importance of drawing a distinction between "cases … where the employee was engaged, however misguidedly, in furthering his employer's business, and cases where the employee is engaged solely in pursuing his own interests: on a 'frolic of his own’.”
Mr Justice Martin Spencer accordingly found that HHJ Rawlings had correctly and appropriately adopted the two-stage ‘sufficient connection’ test set out in Lister.
Mr Justice Martin Spencer also agreed with HHJ Rawlings’ conclusion that "horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment" and “Increased supervision to prevent horseplay, ill-discipline or malice was not a reasonable step to expect this employer to have identified and taken”.
The Claimant’s appeal was therefore dismissed.
The Judgment of Mr Justice Martin Spencer serves to re-enforce the general principle that an employer will only be vicariously liable for the actions of their employee when the wrongful conduct is closely connected with acts the employee was authorised to do.
It is difficult to envisage a scenario whereby a practical joke carried out by an employee could be found to ‘further the objectives of the employer’ and therefore fall within the scope of vicarious liability.
The Judgment also provides some helpful guidance regarding the necessary measures an employer should take to avoid any such practical jokes. Both HHJ Rawlings and Mr Justice Martin Spencer were unequivocal in their determination that an employer does not need to assess the risk posed by horseplay, ill-discipline and malice as these acts, ‘by their very nature, are acts that the employee must know are outside behaviour that they should engage in at work’. As such, it is unreasonable to expect an employer to devise and implement a policy or site rules to address practical jokes.
It should however be kept in mind that this decision was made in the context of Tarmac being found to be ‘an organisation that took health and safety matters seriously’. Had Tarmac been lapse in their other duties, the Court’s decision may not have been so favourable.
This article is the second in a series to help firms take a practical approach to complying with the ‘cross-cutting rules’ within the new ‘Consumer Duty’ (CD) framework. The article summarises what it seems the Financial Conduct Authority (FCA) is seeking to achieve from the applicable rules (section 2 below) and potential complications arising from legal considerations (section 3).
Claims arising from interest-only mortgages have been farmed in volume. Many such claims to date have sought to drive a narrative that interest-only mortgages are an inherently toxic product and brokers were negligent simply for suggesting them. Taylor is a helpful recalibration, focussing instead on what the monies raised by the mortgage product were being used for and whether the client understood the inherent risks.
This article is the first in a series aimed to help firms get to grips on a practical basis with the ‘cross-cutting rules’ within the new ‘Consumer Duty’ framework.
Browne Jacobson’s corporate finance lawyers have advised leading private equity investor, Rcapital Partners LLP (Rcapital) on its majority stake acquisition of managing general agents (MGAs), UK General Insurance Ltd (UKG) and Precision Partnership Limited (PPL) alongside Montague Investment Group LLP who are taking a minority stake.
Whilst the weather conditions are predicted to be cooling down this week, the Health and Safety Executive (HSE) is asking employers and businesses to consider adapting to recurrent warmer weather conditions for the safety and benefit of their staff. It asks employers to ensure that extreme heat becomes a firm part of longer term risk management. Climate change in any event is something all businesses will need to consider as the warmer weather becomes more frequent - extreme heat is something that will impact employers on a day to day basis.
Bridget Tatham, a specialist defendant insurance lawyer at Browne Jacobson has been honoured at this year’s Birmingham Black Lawyer (BBL) Excellence Awards, having been named Lawyer of the Year. Bridget was also shortlisted for BBL’s Diversity Champion 2022.
Recent reports of flat roofs constructed using RAAC planks collapsing without warning prompted the SCOSS alert.
On 10 June 2022 the Court of Appeal upheld an anti-suit injunction granted in favour of insurers by Mr Justice Jacobs in September 2021 restraining proceedings from being brought in Canada and enforcing the exclusive English jurisdiction clause in excess liability policies.
Browne Jacobson has announced its financial results for 2021-22 with revenues up 11 per cent year-on-year to £94m, up from £85m. It marks the 13th consecutive year of growth with a 59 per cent increase in revenues since 2015 (£59m).
As the Grenfell Inquiry continues, how have the Phase 1 recommendations changed the fire safety and building safety landscape?
Here we look at the potential concerns the legislation could have for lenders and the impact it may have on documenting secured funding agreements.
As has been widely reported this week, some 3,000 UK workers are taking part in a six month trial to assess the viability of a four-day working week without any reduction in their normal pay.
A lawyer and a HR business partner from law firm Browne Jacobson have been announced as winners of the WeAreTheCity’s Rising Stars Awards 2022.
A brief introduction for clients for the Damages Claims Portal.
In anticipation of the adoption of the Building Safety Bill, our specialist compliance and regulatory team will give an overview of the measures proposed in the Bill.
With the fast pace of legal and regulatory changes, Browne Jacobson is launching its ‘In-house for intermediaries’ service for brokers and MGAs.
From 6 April 2022, right to work checks on all migrant or settled prospective employees must be online and checks on British or Irish nationals will be manual (free) or digital (charged for).
The Presidents of the Employment Tribunals England and Wales and Scotland have issued a new road map for 2022-23, providing an update on the resourcing challenges faced by employment tribunals and the steps put in place to address these.
This webinar looks at the three key themes in the decision, and is aimed at sports & social clubs (including safeguarding officers).
Insurance law firm Browne Jacobson has won the Inclusion & Diversity Award at the National Insurance Awards 2022. The National Insurance Awards are judged by an independent panel of experts and celebrate excellence in the sector by highlighting the very best in general insurance provision and management.
In Nissan v Passi, the High Court recently considered the issue of an employee retaining confidential documents belonging to his former employer in the context of the employer’s application for an injunction seeking the return of such documents from the employee.
The Government’s much-publicised ‘levelling-up’ programme brings with it a number of changes and challenges for property professionals which, without careful preparation, could see a steep rise in allegations and claims for professional negligence.
Browne Jacobson’s Manchester based banking and private equity lawyers have advised OakNorth Bank on its loan facility to Apprentify Limited, a leading provider of digital marketing and tech apprenticeships for the North.
As a developing area, key stakeholders in this space such as insurers, and technology and software developers looking to become ASDEs or NUIC operators, should keep a keen eye on whether the Government proceeds with introducing new legislation in line with the report’s recommendations.
In our review of key trends from 2021 and key trends to watch for 2022, we share insights that will enable you to navigate challenges, and make the most of the opportunities across various sectors and lines of business.
National law firm Browne Jacobson has been named again as one of EM Lawshare’s (EMLS) legal partners after successfully bidding to support them in their core legal work.
Browne Jacobson’s national corporate tech lawyers have advised specialist insurtech business Laka on its $12m series A investment round. The cash injection will allow Laka to expand its operations across Europe and support its new retail partners based in Belgium, France and Germany.
The High Court has considered the application of the Human Right Act to local authorities in cases where they are carrying out their statutory child protection functions after dismissing the latest ‘failure to remove’ claim against two local authorities.
Following the Supreme Court decision in CN & GN -v- Poole Borough Council [2019] and other subsequent cases, it is now established law that the mere fact that various steps are taken by local authorities in the discharge of its child protection functions is not enough to give rise to an assumption of responsibility.
Browne Jacobson’s specialist government and infrastructure team have advised Canford Renewable Energy Ltd on the delivery of its Dorset Green H2 facility.
Browne Jacobson partners Mark Blois and Tim Johnson have been named amongst some of the country’s most innovative and creative lawyers after featuring in The Lawyer’s ‘Hot 100’ listing for 2022.
Payment systems across Europe are under increased pressure to mitigate fraud risks and defend against persistent attacks from enablers using ever more sophisticated and malicious viruses and malware.
The Financial Conduct Authority has highlighted that non-financial misconduct, which of itself constitutes a breach of principles and rules, has the potential to be an indicator or driver of wider conduct risk – behaviour within firms influences the behaviour of those firms towards customers and other third parties.
COP 26 is the global United Nations climate change Summit, which will take place in Scotland in November. It comes at a time when climate change, and how to reduce greenhouse gas emissions, is at the top of the political agenda.
This report focuses on key issues in the financial services and insurance markets such as environmental, social and governance sustainability and responsibility.
When the EU and UK introduced more rigorous financial regulation in the 2010s, they addressed potential risk at banks before turning to insurance. Rule changes following Brexit may occur in the opposite order as the UK is mulling ways to relax the prudential framework for insurers established by the Solvency II Directive.
The ‘Everyone’s Invited’ movement has over 9,000 testimonies on its website and, whilst it has recently taken the step to anonymise everything on the platform, a number of schools have been named.
