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The claimant, Mr Chell, suffered a perforated eardrum, hearing loss and tinnitus whilst working at a site controlled by the respondent, Tarmac, because the respondent’s (Mr Heath) had placed two pallet targets on a bench adjacent to the claimant’s ear and hit them with a hammer causing a “loud explosion”.

Mr Heath’s employment was terminated as a result of the incident.

The claimant was employed by a third party, Roltec, and the incident occurred following what was described as a period of tension involving Tarmac staff not welcoming Roltec staff on site, which was highlighted to management by the claimant.

The claimant alleged that the respondent was vicariously liable for the actions of their employee as well as in breach of their direct duty of care towards him for failing to prevent a foreseeable risk of injury.

The parties accepted that whilst the hammer was work equipment, the pellet targets had not been supplied by Tarmac, but had been brought on to site from outside.

The claimant lost his case in the first instance and on appeal, both in respect of vicarious liability and breach of duty. He appealed to the Court of Appeal claiming that the lower courts had misapplied the law to the facts.

The court decided that the employer was not vicariously liable for the actions of Mr Heath and his actions were not “done in the course of employment”.

He had not been authorised to do what he did, and neither were his actions an unlawful mode of doing an authorised act. Mr Heath’s actions did not advance the purposes of the respondent, and no part of Mr Heath’s work required him to hit pellet targets.

Mr Heath’s actions were not deemed to be so closely connected to what he was authorised to undertake such as to make it “fair, just and reasonable” to impose liability, as:

  • The pellets were not work equipment, neither were they required for Mr Heath’s work;
  • Mr Heath had no supervisory role and there was no abuse of power by Mr Heath;
  • Mr Heath had not been engaged on the work which the appellant was carrying out at the time of the incident; and
  • Any risk created by Mr Heath was not inherent in the workplace; any general tensions between staff had been subsiding, there had been no threats of violence, the appellant had not asked to be removed from site and had not referred to Mr Heath as the source of any tension.

As highlighted by this case, it is vital that employers take steps to prevent any backlash from employee’s seemingly innocent antics.



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