In Chell v Tarmac Cement and Lime Ltd, tensions arose between the Tarmac fitters and fitters provided by a contactor, Roltech. The Tarmac fitters thought, probably wrongly, that their jobs were in jeopardy and that they would be replaced by the Roltech fitters. H, a Roltech fitter, brought two “pellet targets” with him on to the site and he put those on a bench close to a Roltech fitter’s, C’s, right ear. H then hit them with a hammer causing a loud explosion as a practical joke, but the joke ‘misfired’ as C suffered a perforated right eardrum. The High Court held that Tarmac was not vicariously liable for H’s actions which had caused the injury as there was no sufficiently close connection between the risk posed by the tensions on site and the wrongful act to make the company liable. Nor was Tarmac negligent in failing to take steps to prevent the injury as there was no foreseeable risk of harm being caused as the tensions were not that serious so as to indicate any possibility of violence or physical confrontation. Furthermore the findings in relation to vicarious liability impinged on this aspect too: if H was acting in a way wholly unconnected with his employment, but for his own purposes and “on a frolic of his own”, then it is more difficult to argue that Tarmac should have taken steps to avoid such behaviour.
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