The Chell case considered whether an employer was vicariously liable for a practical joke by one of its employees, which resulted in injury to a contracted worker (‘the claimant’). The employee deliberately caused a loud explosion by striking two large pellet targets (which were near to the claimant’s ear) with a hammer. Although there was no deliberate attempt to injure the claimant, he suffered significant damage to his hearing. There was evidence of ill-feeling between the employees and the contracted workers, evidence which was used to support the argument that there was the necessary connection between the employee’s act and his employment. However, it was not considered that the contractors had any reason to fear for their safety on site. The County Court ruled that the employer was not liable for the injuries caused. The claimant’s appeal was dismissed by the High Court.
This article will explore the ruling and appeal in more detail to explain why the employer was not held vicariously liable for the injury to the claimant, before considering the implications for physical assault/abuse claims involving work-related assaults between co-workers/co-employees, specifically reviewing a football claim involving an initiation ceremony.
The judge applied the close connection test (Lister v Hesley Hall [2001]) to determine the vicarious liability question. Was there a sufficient connection between the employee’s role and the employee’s act of striking the two pellet targets with a hammer close to the claimant’s ear to make it just that the employer be held liable for the employee’s actions?
First, the judge found that the striking of the pellets fell outside the employee’s field of activities. It was then necessary to consider whether the required sufficient connection might have been established by workplace tensions between the employees and the contracted workers. Given that the claimant felt uncomfortable rather than threatened and that the employee who used the hammer did not intend to cause physical injury, the judge found that these tensions were not sufficient to establish the requisite close connection. Consequently, the employer was not vicariously liable.
One of the bases of the appeal submitted the ‘seamless transition’ from the employee’s duties to playing the practical joke and that the employee’s employment provided the opportunity for the prank.
The judge considered another practical joke case, Graham v Commercial Bodyworks Ltd [2015]. The facts were that a person described as a “co-employee” (with no apparent distinction in status between the wrongdoer and the victim) had lit a cigarette lighter in the vicinity of the victim whose overalls had been sprinkled with a thinning agent. The consequent fire caused serious injury. This was described by the trial judge as a “deliberate and clearly reckless” act and by Longmore LJ as “frolicsome but reckless”, which could not be said to have been in the course of the wrongdoer’s employment. Five criteria (which included “the extent to which the wrongful act related to friction, confrontation or intimacy, inherent in the business”) were applied to assess the degree of connection between the wrongful act and the wrongdoer’s employment. The claimant and the wrongdoer were close friends and so no friction/confrontation could be said to have occurred. Consequently, the claimant failed at trial and on appeal as the necessary connection had not been established so as to hold the defendant liable.
In Chell there was some degree of friction, but this was not sufficiently strong enough to tip the balance in the claimant’s favour. Crucially, the employee did not intend to cause the injury; accordingly, he was determined to have been on a “frolic of his own” when committing the practical joke. Therefore, again, the necessary connection was not found.
Finally, it was also held that the employer had not been negligent in failing to take steps to prevent the injury from occurring as there was no foreseeable risk of harm being caused; workplace tensions were not serious enough to indicate any possibility of violent confrontation. Furthermore, the findings in vicarious liability impacted upon this aspect as well. Given that the employee was acting in a way wholly unconnected with his employment role, but instead acting on a “frolic of his own”, this made it difficult for the claimant to maintain that the employer should have taken steps to avoid such behaviour.
Accordingly, the case was dismissed.
The issue of vicarious liability regarding frolicsome conduct was also considered by the High Court in the case of GB v Stoke City FC [2015]. The claimant was an apprentice footballer for Stoke City FC (‘the Club’) during 1987–1989. The claimant alleged that in the context of a punishment ritual he had twice been intimately, but not sexually, assaulted by a professional footballer. The questions to be asked were the same as in Chell: was there a sufficiently close connection between the role of the alleged assailant and his assault of the claimant to justify imposing vicarious liability? Secondly, did the circumstances of the claimant’s duties create or enhance a risk of friction such that professionals, disgruntled for whatever reason, would deliver a form of punishment whether or not strictly contractually authorised to do so? The claimant contended that as apprentices performed menial duties for professional players, including the cleaning of boots and kit, preparing drinks and cleaning the dressing room, there was a risk of a professional assaulting an apprentice as punishment for not doing his job properly.
Counsel for the Club submitted that the alleged assaults could not fairly and properly be regarded as being closely connected with the employee’s employment because the Club did not create or enhance the risk of that kind of behaviour occurring to the claimant. The assaults could not in any way be said to be a means of advancing the Club’s interests or business, improperly or at all. The risk of friction or confrontation between different classes of employee is a feature of human interaction, but was no more inherent in the Club’s business than in any other workplace. In that context, the employee’s conduct, if proved, was an unrelated and independent venture of his own and constituted, at best, a “frolic” or, at worst, a “personal act of vengeance or spite” for a perceived slight.
Taking the above into account, the trial judge held that the Club was not vicariously liable for the assaults, saying that the “acceptance of the claimant’s submission would involve an extension of the boundaries of vicarious liability beyond the parameters of the decided authorities. I consider that if I were to accept it I would be significantly and unjustifiably extending the scope of vicarious liability. Most, if not all, apprentices or trainees in all workplaces, not just sporting organisations, would be at such a theoretical risk and such a finding would be little short of holding that any employer should be vicariously liable for any assault on any apprentice or trainee by a full-time employee in all circumstances… it would be a step further than the authorities justify.” Furthermore, even if the assaults had been proven to have occurred, “it would have been deliberate and intentional or reckless conduct involving a serious assault outside the course of the (assailant’s) employment … It would have been conduct of a kind analogous to that… in the cases described by Longmore LJ in Graham [v Commercial Bodyworks] as ones in which it is inappropriate to impose vicarious liability.”
In other words, the alleged assaults in the cases of Chell, Graham, and GB were adjudged to have been committed by employees on ‘frolics of their own’ which fell outside the scope of vicarious liability. Notwithstanding the Supreme Court’s activities in relation to stage 2 of the vicarious liability test in the interim, all three of these decisions maintain a common line of reasoning that the Supreme Court’s decisions do not disturb.
The Chell case has important continued implications for any future physical assault/abuse claims involving co-workers. When any work-based physical assault/abuse claims are made alleging vicarious liability, defendants must consider whether or not the index events occurred outside the employee’s activities. If so, they must then consider whether there is any evidence of prior conduct, such as incidents creating tension between the protagonists, which may then provide the necessary connection between the employee’s act and their employment. If investigations reveal that an employee did not intend to cause injury, it is less likely that the necessary connection will be found to exist to hold the employer vicariously liable. But even if an assault was intentional, then defendants should also consider the GB case and ask themselves whether the assault was frolicsome or reckless. If so, GB illustrates that there can still be no finding of vicarious liability.
The findings in the cited cases mean that the scope of vicarious liability has not been widened. Had the findings been to the contrary, this would have been excessively onerous upon employers and their insurers, opening them up to new claims involving reckless and frolicsome conduct by assailant employees committed outside the course of their employment. Accordingly, claimants must be mindful of these authorities when deliberating on whether or not to pursue any potential physical assault/abuse claims between co-workers/co-employees which are centred on vicarious liability. Furthermore, as per the Chell findings, negligence will demand careful consideration. After all, if an assault falls outside the scope of an employee’s duties then, in the absence of evidence to the contrary, the likelihood of the employer being found negligent for an employee’s act outside the scope of employment will reduce.
For more information, please contact Richard Kirby, Solicitor.
Richard Kirby
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