Tarmac company not liable for 'practical joke' injury to worker

A worker who was injured because of a practical joke played by a colleague was not entitled to compensation from his employer.

That was the decision of the High Court in a case involving Tarmac Cement and Lime Ltd and Andrew Chell.

Mr Chell suffered a perforated ear drum, hearing loss and tinnitus when a colleague, Anthony Heath, detonated two explosive pellets close to his ear in a practical joke that went wrong. Heath was later dismissed.

Mr Chell brought a claim of negligence against Tarmac for failing to protect him at work. He said

Tarmac should have removed Heath from the site after tensions arose between workers and there was failure to provide supervision to prevent horseplay.

Tarmac denied liability, saying that ‘horseplay’ was not within the course of Heath’s employment. It said that Heath’s actions had been wholly outside the scope of any reasonable foreseeability, risk assessment or health and safety guidelines.

The judge at the first hearing ruled in favour of Tarmac. Judge Rawlings held that it was not liable because the airgun target pellets were brought on to the site and that Heath’s actions were unconnected with his work.

It was a more a case that work “merely provided an opportunity to carry out the prank”.

Judge Rawlings said: “Horseplay, ill-discipline and malice are not matters that I would expect to be included within a risk assessment. Those acts, by their very nature, are acts that the employee must know are outside behaviour that they should engage in at work.”

Chell appealed, submitting that Tarmac had no reasonable system in place to maintain discipline.

Tarmac insisted that health and safety procedures were adequate, and increased supervision to prevent horseplay was not a reasonable step for an employer to take.

The High Court also ruled in favour of Tarmac.  Mr Justice Martin Spencer said: “It is expecting too much of an employer to devise and implement a policy or site rules which descend to the level of horseplay or the playing of practical jokes.”

He added that sympathy for Mr Chell could not form a legal basis for liability.

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