Chell v Tarmac Cement and Lime Ltd: CA 12 Jan 2022

Explosive Pellet Use Not Within Employee’s Role.

The claimant worked on a site operated by the respondent. One of the respondent’s employees exploded two pellet targets injuring the claimant’s hearing. He asserted vicarious liability in the respondent. There had been tensions between the claimant and the respondent’s own staff. The judge found that the use of the pellets was not within the range of duties assigned to the respondent’s employees, and that they were therefore not responsible.
Held: The appeal failed. The parties did not challenge the judge’s analysis of the law. On the facts: ‘ the careful and detailed findings of fact made by the judge, unchallenged by the appellant, are fatal to this appeal. What they demonstrate is that there was not a sufficiently close connection between the act which caused the injury and the work of Mr H so as to make it fair, just and reasonable to impose vicarious liability on Tarmac.’ The pellet was not part of the respondent’s equipment, and nor was it part of his work to use it. No supervisory role existed.
‘In order to succeed on the alleged breach of the employer’s duty of care, it must be shown that there was a reasonably foreseeable risk of injury to the appellant by reason of the actions of Mr Heath. It is accepted that horseplay, ill-discipline and malice could provide a mechanism for causing such a reasonably foreseeable risk but, in my view, it is not made out on the facts of this case.’


Lady Justice Nicola Davies
Lady Justice Simler
Lord Justice William Davis


[2022] EWCA Civ 7




England and Wales


CitedJacobi v Griffiths 17-Jun-1999
(Canadian Supreme Court) The process for determining when a non-authorised act by an employee is so connected to the employer’s enterprise that liability should be imposed involved two steps: 1. Firstly a court should determine whether there are . .
CitedCox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
CitedBazley v Curry 17-Jun-1999
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be . .
CitedMohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedGraham v Commercial Bodyworks Ltd CA 5-Feb-2015
The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .
CitedCockbill v Riley QBD 22-Mar-2013
The claimant sufferd catastrophic injury diving into a paddling pool at a party held by the defendant for his daughter to celebrate completing her GCSEs.
Held: The claim failed. ‘It was reasonably foreseeable that someone would lose his . .
CitedDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Appeal fromChell v Tarmac Cement and Lime Ltd QBD 5-Oct-2020
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Lists of cited by and citing cases may be incomplete.

Personal Injury, Vicarious Liability

Updated: 23 March 2022; Ref: scu.671052