The recent case of Chell v Tarmac Cement is yet another reported case which attempts to clarify the law of vicarious liability.

The Facts

The Defendant, T, managed a construction site.  Fitters employed by T were engaged in works on the site.  However to move things along, T also sub-contracted with a third party, R, to provide further fitters.

The Claimant was an employee of R. According to the Claimant, the introduction of outside fitters to the site created tensions between fitters employed by R and those who were employed by T. 

On 4 September 2016, as a practical joke, one of T’s employees, H, hit a “pellet target” with a hammer causing a loud noise next to the Claimant’s head as he was bending over to pick up a length of steel.  As a result the Claimant suffered a hearing injury.  The pellet target was brought on site by H, but the hammer belonged to his employer, T.

The Initial Proceedings

At trial, the main issue for the judge to consider was whether T was vicariously liable for the actions of H, bearing in mind that his actions did not on the face of it appear to be work-related.

To do this, the judge first applied the two-limb test outlined in the previous case of Lister:

  1. Was there a close relationship between the Defendant, T and H?
  2. Was there a sufficient connection between the relationship between T and H as employer/employee, and H’s act of striking the pellet target close to the Claimant, to make it just that T should be held responsible for H’s act?

The first part of the test was clearly made out, as T was an employee of H. However the Claimant failed on the second limb of the test.

Whilst it was accepted that T was aware of the friction on site, and that this tension had been brought to its attention, T’s knowledge of that friction did not create a sufficiently close connection between T and H’s wrongful act of hitting the pellet target with a hammer.  The main reasoning was that the tensions between the two groups of fitters had been limited to verbal confrontations, with no serious risk or suggestion of physical confrontation. 


The Claimant appealed on the basis that the judge had approached the issue of vicarious liability from too narrow a perspective and that more weight should have been given to T’s failure to risk assess the issue of the tensions on site. 

The appeal was dismissed.  The Court of Appeal noted that the trial judge had not had the benefit of the recent Supreme Court decision in Morrisons v. Various.  That case reaffirmed the general principle that, in order for a finding of vicarious lliability to be made, the wrongful conduct had to be so closely connected with acts that the employee was authorised to do that, it might fairly and properly be regarded as done by the employee whilst acting in the ordinary course of employment.

In particular, the Court of Appeal emphasised that in order for a finding of vicarious liability to be made, there needed to be a sufficient connection between the role in which the employee was employed and his wrongful conduct. 


Whilst the incident took place during work time, partially using work equipment (the hammer), and potentially due to problems with a third party contractor, it still did not result in H’s practical joke being considered part of his employment.  This common sense approach represents a further and welcome clarification on the law regarding vicarious liability.

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