Workplace horseplay and employers' responsibilities – guideline ruling

Sydney Mitchell LLP

Irresponsible horseplay in the workplace can cause serious injury, but to what extent should employers be held indirectly – or vicariously – liable for such behaviour? The Court of Appeal considered that burning issue in a guideline case.

A fitter was bending down to pick up a length of steel when a workmate placed two pellet targets on a bench close to his right ear. The workmate struck the targets with a hammer, causing a loud explosion. As a result, the fitter suffered noise-induced hearing loss in his right ear and tinnitus.

He launched a compensation claim against the company that employed the other man and operated and controlled the site where the incident occurred. His claim was, however, rejected on the basis that the company bore neither direct nor vicarious responsibility for the other man's practical joke.

Rejecting his challenge to that outcome, the Court noted that the targets had been brought onto the site by the other man and were not part of the work equipment provided by the company. He had no supervisory or other role in respect of the fitter's work and his wrongful act was not authorised by the company or carried out in the course of his employment. It was therefore neither just, fair, nor reasonable to impose vicarious liability on the company.

The Court noted that the fitter and his team were external contractors. There was some friction between them and other workers directly employed by the company. There was, however, no suggestion that those tensions had previously resulted in actual violence or threats of violence. It could not be said that the incident was reasonably foreseeable by the company.

It was unrealistic to suggest that the company should have specifically instructed workers on the site not to engage in horseplay. That went without saying in that common sense decreed that such behaviour was inappropriate. There was in any event a site rule in place that forbade workers from intentionally or recklessly misusing equipment. That was a warning against exactly what the other man did.

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