Recently, a court refused to allow an appeal by an employee who was hit on the head by a thrown hammer. He was denied compensation from the employer and as such put in an appeal.
In the case of Christopher Somerville v Harsco Infrastructure Limited 2015, Mr Somerville had been injured whilst working for scaffolding firm Harsco Infrastructure Ltd (HI). Mr Somerville was in the yard checking scaffolding boards when he was struck on the head by a hammer. Mr Somerville was then off work for three days after the incident and suffered from dizziness, nausea and headaches. He then attempted to claim compensation from HI for the injuries he suffered.
Mr Somerville happened to be in the wrong place at the wrong time which led to him being struck by the hammer. Two other employees were in the yard and were engaged in “banter”. Stanley Smith, the Yard and Transport Manager was one of the employees in question. The banter concerned who would be sent to collect rolls for the morning break. As Stanley Smith walked back to his office as the banter continued, he shouted in response to remarks made by his colleague “I will teach you to speak to your manager like that” and picked up a claw hammer and threw it. This resulted in Mr Somerville being hit on the head.
So is the employer vicariously liable? (Employers are liable for the actions of their employees carried out in the course of employment).
The incident appears to be work related, the hammer was work equipment which was owned by the company and it occurred on the company’s premises during working hours. These all point to HI being responsible for the injuries. However, the first hearing was dismissed on the basis that the event was not closely connected to Stanley Smith’s employment.
Although Mr Somerville’s lawyer tried to argue as Stanley Smith used the words “your manager”, this showed that he was acting in his supervisory role although it was carried out recklessly. However the Sheriff Principal at the appeal hearing concluded that the words in question were simply light hearted banter and was not carried out in the course of Stanley Smiths employment, the appeal was therefore refused.
It is important to remember, although you may not be liable for every wrongful act committed in work time by your staff, if horseplay is a common occurrence, which management should be aware of, you could be responsible for the consequences.
Make it clear within your work Health and Safety policy or employee safety rules that horseplay will not be tolerated and if it does occur then apply your disciplinary procedure!
For advice on health and safety or disciplinary procedures Lawgistics members can contact the legal team.
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