Vicarious Liability: Decisions This Week In The Contexts Of Sexual Abuse And 'Horseplay' At Work

• Published date: 14 January 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation, Personal Injury
• Law Firm: BLM
• Author: Mr Alistair Kinley

Two decisions this week in very different contexts reinforce the legal tests and factual limits of vicarious liability in negligence claims and show the careful application in practice of the two part test that was most recently refined by the Supreme Court in the duo of cases, Barclays Bank and Morrisons, decided on the same day in April 2020.

On 10 January, in TVZ v Manchester City, Johnson J dismissed claims pursued against the Premiership club by young footballers who had been abused decades ago by the football scout Barry Bennell. That his judgment runs to over 570 paragraphs indicates his meticulous analysis of the facts and application of the law.

He concluded that the claims should fail on limitation. However, he examined the question of vicarious liability in any event and held that it would not have been made out on the established facts. My colleagues David Milton and Catherine Davey looked at the decision earlier in the week in these posts on our abuse blog. Further detailed blogs on the judge's analysis of vicarious liability and quantum will be provided there shortly. The decision is likely to be appealed.

Chell v Tarmac is an appeal which concerned a remarkably crass example of 'horseplay' at work. The judgment in the High Court began in memorable fashion: 'The practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong.'

The employees involved were based at the same site but the practical joker, H, was employed by Tarmac and the claimant was employed by another company, R. There was some tension in relationships due a perception that the employees of R might be replacing those of Tarmac. The claimant was injured when H, as some form of prank, used a hammer to detonate two explosive pellet targets placed on a bench close to his (the claimant's) ear. He suffered a perforated eardrum, hearing loss of around 10dB and tinnitus. H was dismissed by Tarmac.

It was not disputed that the first part of the legal test for establishing vicarious liability, the relationship of the tortfeasor H and the defendant Tarmac, was clearly fulfilled by the employment of the former by the latter. The claim would therefore turn on the second part of the test: the degree of connection of the wrongful act with the defendant's activity.

As described above, the facts appear to point to the employee's act being a...