It is a well-established legal principle that a party can be held liable for losses arising from his negligence. In an employment setting an employer can be held vicariously liable for the negligent acts or omissions of an employee committed during the course of his employment which resulted in an injury to another party. The test, established in the case of Lister v Hesley Hall Ltd [2001] UKHL 22, is whether the employee's conduct was so closely connected with their employment that it would be fair, just and reasonable to hold the employer liable for their employee's actions. Post-Lister, courts have been careful to specify exactly what forms of conduct give rise to vicarious liability in an employment context.

The recent English case of Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613 (QB), considered whether an employer could be held liable for an employee engaging in a practical joke which resulted in an injury to a sub-contractor.

The Facts

Mr Chell and his brother were employed as site fitters by Roltech Engineering Limited. In December 2013, they were contracted out to Tarmac Cement and Lime Ltd. They were employed at Tarmac's site alongside fitters directly employed by Tarmac. There were tensions between the contractors and Tarmac's employees and there were rumours of potential redundancies. The incident occurred in September 2014. The Claimant was working on site in a workshop. A Tarmac fitter placed two pellet gun targets on a bench, close to where the Claimant was working. He then hit the targets with a hammer which resulted in a loud bang. The Claimant suffered a burst eardrum alongside hearing loss and tinnitus.

Decision at first instance

Proceedings were brought by Mr Chell against Tarmac. Applying Lister, HHJ Rawlings found that the Tarmac was not vicariously liable for the actions of its employee. The Court also found there was no direct breach of duty by the Defendant. Emphasis was placed on the fact that the pellet gun targets were not supplied by Tarmac. Furthermore, the hitting of the targets with a hammer was not part of the employee's regular duties and did nothing to further the goals of the employer.

The Claimant appealed against this decision on the points of both direct and vicarious liability. The Claimant argued that the incident did relate to the course of employment as the employee was trying to boost morale amongst the divided workforce. In addition, the Claimant argued that the Defendant had a duty to guard against the foreseeable risk of harm as a result of ill-discipline amongst the workers.

High Court decision

Mr Justice Spencer held that HHJ Rawlings had not erred in his application of the law of vicarious liability. He held that the judge had "correctly and appropriately" applied the test set out in Lister. The employee was not engaged in an activity which furthered the goals of his employer's business and could not have been said to have been acting in close connection with his employment. The imposition of vicarious liability on the employer was not fair in this scenario.

On the issue of direct liability, at first instance, Judge Rawlings said that "horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment". Mr Justice Spencer agreed, stating that the existing health and safety procedures incorporated by Tarmac on the site were sufficient. Furthermore, given that the employee in question was acting in a manner wholly unconnected with his employment, it was hard to argue that Tarmac should have taken steps to guard against this. The appeal was dismissed.

Importantly, there was no foreseeable risk of injury to the Claimant from the Tarmac employee and therefore no need for Tarmac to take specific action in response.


This decision will offer comfort to employers as it confirms that they are not expected to manage unforeseeable risks of injury by practical jokers. However, employers are advised to take action if they become aware of issues or behaviours that might bring risk of injury within their knowledge.

This decision adds to the growing number of recent vicarious liability decisions and also adds further insight on the scope of what falls within an employee's ordinary course of employment. We anticipate more cases will follow as the law develops. Interestingly, both the judges at first instance and appeal expressed sympathy for the Claimant in this case.


Craig Fulton