Gravil v Carroll and another [2008] EWCA Civ 689, [2008] All ER (D) 234 (Jun)
Court of Appeal, Civil Division
Sir Anthony Clarke MR, Smith and Richards LJJ
18 June 2008
In finding a rugby club vicariously liable for battery committed on the field of play by one of its players, the court reiterated that the essential question was whether the tort was so closely connected with the employment, that is, with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible.
Martin Seaward (instructed by Cramer Richards) for the claimant. Richard Stead (instructed by CIP) for the second defendant.
Both the claimant and the first defendant were semi-professional rugby players and both had other full-time employment. In October 2005 the claimant was playing as a prop forward for Halifax Rugby Football Club and the first defendant was playing in the second row for the second defendant, Redruth Rugby Football Club.
Following a scrum, an altercation developed involving the claimant and two Redruth players, one of whom backed away. At that point, the first defendant threw a punch which struck the claimant and caused him to sustain an injury which required reconstructive orbital surgery. It was clear from a DVD of the match that, when the punch was thrown, although the whistle had gone and the Redruth hooker had backed away, there remained something of a melee of the kind which frequently occurred during rugby matches.
At the time of the incident, the first defendant had a contract of employment with Redruth which expressly provided that he would be a part-time employee of the club, employed to play rugby for it and that, while doing so, he was subject to certain express obligations including the obligation to pay for any fines incurred because of his actions. The claimant commenced proceedings in the county court against the defendants, claiming damages for battery.
The judge found the first defendant liable, but held that the second defendant was not vicariously liable for his act. The claimant’s appeal to the High Court against the dismissal of his claim against the second defendant was dismissed. He appealed to the Court of Appeal.
SIR ANTHONY CLARKE MR (GIVING THE JUDGMENT OF THE COURT):
The long-established rule was that an employer was vicariously liable for the torts of his employee committed in the course of the employment. However, problems could arise and had arisen in the instant case, where the employer contended that the employee’s tort was not committed in the course of the employment but fell outside the scope of the employment. Drawing the line between actions for which the employer was and was not vicariously liable could be difficult but the principled approach which should be applied had been considered in a number of authorities.
His lordship considered Lister and others v Hesley Hall Ltd [2001] UKHL 22, [2001] 2 All ER 769; Mattis v Pollock (trading as Flamingos Nightclub) [2003] EWCA Civ 887, [2004] 4 All ER 85; and Bazley v Curry (1999) 174 DLR (4th) 45.
The authorities showed that the essential question was whether the tort was so closely connected with the employment, namely what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible. In answering that question the court had to take account of all the circumstances of the case, looking at the matter in the round. The authorities showed that it would ordinarily be fair and just to hold the employer liable where the wrongful conduct might fairly and properly be regarded as having been done while acting in the ordinary course of the employee’s employment. That was because an employer ought to be liable for a tort which could fairly be regarded as a reasonably incidental risk to the type of business being carried on.
It was not appropriate to ask a broader question, namely whether or not in all the circumstances of the case it would be fair and just to hold the employer liable. The critical factor was the nature of the employment and the closeness (or otherwise) of the connection between the employment and the tort. The question what was fair and reasonable had to be answered in the context of the closeness or otherwise of that connection. The answer to the question in each case depended upon its particular facts.
In the instant case, there was a very close connection between the punch and the first defendant’s employment. He was employed to play rugby for Redruth. When he punched the claimant there was still a melee of the kind which frequently occurred during rugby matches, despite the fact that the whistle had gone.
That close connection could be seen both from the facts just described and from the terms of the contract.
Liability
The next question was whether the close relationship between the punch and the employment was such that it would be fair and just to hold Redruth liable, and the answer to that question was plainly yes. It was now recognised that it was possible to be very seriously injured as a result of foul play during a rugby match. It was incumbent on both players and clubs to take all reasonable steps to eradicate, or at least minimise, the risk of foul play which might cause injury.
Both the desirability of an adequate and just remedy for the claimant on the one hand and deterrence of the club by bringing home that liability on the other, to prevent or minimise the risk of foul play in the future, led to the conclusion that it would be fair and just to hold that Redruth was vicariously liable on the facts of the instant case.
The appeal would therefore be allowed. His lordship stressed that in doing so he did not intend anything in the judgment to be relevant to the playing of rugby or any other game otherwise than under a contract of employment.
