A rugby player's punch that caused injury was closely enough connected with the employment to make the employer vicariously liable for tortious assault.

Gravil v Carroll [2008] EWCA Civ 689

www.workrep.co.uk - providing free legal information, advice and representation to workers

• violence used by a rugby player was closely enough connected to his employment to make the employer vicariously liable for tortious assault
• An element of fairness, justice and public policy existed in holding the club liable notably that where a club was naturally interested in the game being agressively pursued it had to be encouraged to work harder to limit 'foul play'.
• A court needs to look at the matter in the round, to take account of all the circumstances of the case.
• Volenti non fit injuria ("no injury is done to a person who consents") was considered and rejected by the Court.
• 'Terminological issues should be avoided in favour of a broad approach regarding tortious conduct related to the employment.'

The Court of Appeal however decided that the altercation that developed after the whistle had been blown still took place during the course of the employment and that Redruth was vicariously liable for Carroll's assault on Gravil from the opposing team.

Carroll was therefore bound by contract to play for his club. He was also subject to express obligations even though he was only playing rugby part-time, having full-time employment elsewhere. Caroll received payment as his non-profit making club wanted to avoid losing players to other clubs. Until clubs contractually employed players vicarious liability did not arise.

An employer is normally vicariously liable for an employee's torts committed in the course of the employment. In this case the employer disputed that the employee's tort was committed in the course of the employment. The employer contended that it fell outside the scope of the employment. The Court of Appeal considered a number of authorities such as Lister v Hesley Hall Limited [2001/2] , Dubai Aluminium Co v Salaam [2002/3], Mattis v Pollock (Flamingos Nightclub) [2003] EWCA Civ 887, and Bernard v Attorney General of Jamaica [2004] UKPC 47. In Lister Lord Steyn suggested that future cases should start by considering Bazley v Curry (1999) and Jacobi v Griffiths (1999).

Lord Steyn said that the importance of the connection between the nature of the employment and the particular tort should be subject of an intense focus. In Lister Lord Steyn said that the question was whether the torts were so closely connected with the employment that it would be fair and just to hold the employers vicariously liable. Thus even where an employer is not blameworthy it could still be fair to take responsibility for the torts of employees.

Justice Gray referred approvingly of Lord Clyde (himself referring to Salmond Law of Torts in 1907 previous to Lloyd v Grace [1912] ) proposing that a 'master would be responsible for the wrongful act of his servant if the act done is a wrongful and unauthorised mode of doing an act authorised by the master'. Justice Gray said that, “An act of deliberate wrongdoing may not sit easily as a wrongful mode of doing an authorised act. But recognition should be given to the critical element in the observation, namely the necessary connection between the act and the employment.”

“ If there is a connection, then the closeness of that connection has to be considered. The sufficiency of the connection may be gauged by asking whether the wrongful actings can be seen as ways of carrying out the work which the employer has authorised."

According to Lord Hobhouse if the tort was a failure of duty this will be within the scope of his employment. Justice Gray said the principle is of Lister and Bernard v Attorney General of Jamaica, “whether the tort was so closely connected with what was authorised or expected, so closely connected with the employment of the employee that it would be fair and just to hold the employer vicariously responsible.

Lister is important also for stressing that terminological issues should be avoided in favour of a broad approach regarding tortious conduct related to the employment. “ The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable."

In Lister Lord Steyn also said that a common principle in previous cases was that,"an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carried on."

A court needs to look at the matter in the round, to take account of all the circumstances of the case with it being fair to make the employer liable where the wrongful conduct was done in the ordinary course of the employee's employment, because an employer should be liable for torts that are an incidental risk of the particular business .

The Court of Appeal decided to ask what was fair and reasonable as regards how close the relationship was between the employment and the tort. The Court found a very close connection between the punch and the employment was close as rugby is a contact sport where acts of violence are not infrequent.

The Court found the defendant was acting in the course of his employment and that both the involved players held full time jobs elsewhere was considered irrelevant. In holding the club liable for the tort the Court of Appeal noted that clubs are tempted to turn a blind eye to foul play and that this should be discouraged. That liability was declared here despite indemnity provisions in the contract should encourage clubs to be more proactive in stopping foul play. This would involve taking disciplinary action against perpetrators (something that did not happen here)

Bazley McClachlin J was quoted, “ that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires.......Where this is so vicarious liability will serve the policy considerations of an adequate and just remedy and deterrence."

Volenti non fit injuria ("no injury is done to a person who consents") was considered and rejected by the Court.

Deatons case whereby an act of private retaliation will not lead to vicarious liability was distinguished from this case. Throwing a glass of beer and causing injury was not connected with any work. It was independent and personal, not connected in any way with a barmaid's work unlike the punch which was an incident of the game and therefore related to the employment. That the punch was a serious breach of contract “emphasises, as Lord Hobhouse indicated, the close connection between the tort and the employment not the reverse”.

The appeal was allowed with the proviso that for a club to be liable the player would need to be working under a contract of employment. Purely amateur clubs will be able to breathe a sigh of relief.

The transcript of this case can be found (usually at the Bailli or Employment Appeals websites)  Here

Other recent cases:-