GRAVIL V CARROLL AND REDRUTH RUGBY FOOTBALL CLUB [2008] EWCA Civ 689
FACTS:-
On the 29th October 2005, the First Defendant punched the Claimant during the course of a rugby match. Both were semi professionals. The question in the appeal was whether the Second Defendant was vicariously liable for the First Defendant’s tortious assault. As a result of the punch, the assailant had been shown a yellow card by the referee, but following the match the Claimant’s club cited the First Defendant for breaching the rules of rugby. In October 2006, the First Defendant admitted to a disciplinary tribunal that he had struck the Claimant, but denied pre-meditation and said that he had been provoked. The panel held that there might have been a degree of provocation but the First Defendant’s conduct was no in retaliation for anything that had been done to him personally. They concluded that a red card should have been shown to the First Defendant, who was suspended for eight weeks.
The First Defendant had a contract with his club, which described him as a part time employee. The contract also contained sanctions for the receipt of a yellow and red card and stated that the club might be vicariously liable for his acts or omissions.
At first instance, the trial judge gave judgment against the First Defendant, but not the Second. The Claimant appealed.
JUDGMENT:-
Sir Anthony Clarke MR said that the facts were not in dispute. It was only ten years ago that clubs such as these had begun to employ their players, and he agreed with the trial judge that until then no question of vicarious liability on the part of such clubs could have arisen.
Sir Anthony Clarke referred to the main cases in this area which were:-
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 of what is fair and reasonable had to be answered in the context of teh closeness or otherwise of that connection. The answer to the question in each case depended upon its particular facts.
In the opinion of the Court of Appeal, there was a very close connection between the punch and the First Defendant’s employment. At the time of the punch, there was a melee the kind of which frequently occurred in such matches. This was all part of the game, and the throwing of punches was not uncommon when the scrum was breaking up. There was a very close connection between the First Defendant’s employment as a second row forward and his punching and injuring the Claimant as a prop on the other side. That close connection was supported by the wording of the contract. The fact that the First Defendant had other full time employment was irrelevant.
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 the club liable. In the view of the Court of Appeal, the answer to that question was yes. Rugby clubs should take proactive steps to eradicate foul play. In the case of Bazley McLachlin J had said that vicarious liability would be appropriate where there was a significant connection between the creation or enhancement of a risk and the wrong that accrued therefrom. The Court of Appeal would agree.
In addition the state of mind of the Claimant (insofar as he was aware of the risk of what might happen) was not capable of leading to the conclusion that it would not be fair and reasonable to hold the club vicariously responsible.
For that reason the appeal would be allowed.
FACTS:-
On the 29th October 2005, the First Defendant punched the Claimant during the course of a rugby match. Both were semi professionals. The question in the appeal was whether the Second Defendant was vicariously liable for the First Defendant’s tortious assault. As a result of the punch, the assailant had been shown a yellow card by the referee, but following the match the Claimant’s club cited the First Defendant for breaching the rules of rugby. In October 2006, the First Defendant admitted to a disciplinary tribunal that he had struck the Claimant, but denied pre-meditation and said that he had been provoked. The panel held that there might have been a degree of provocation but the First Defendant’s conduct was no in retaliation for anything that had been done to him personally. They concluded that a red card should have been shown to the First Defendant, who was suspended for eight weeks.
The First Defendant had a contract with his club, which described him as a part time employee. The contract also contained sanctions for the receipt of a yellow and red card and stated that the club might be vicariously liable for his acts or omissions.
At first instance, the trial judge gave judgment against the First Defendant, but not the Second. The Claimant appealed.
JUDGMENT:-
Sir Anthony Clarke MR said that the facts were not in dispute. It was only ten years ago that clubs such as these had begun to employ their players, and he agreed with the trial judge that until then no question of vicarious liability on the part of such clubs could have arisen.
Sir Anthony Clarke referred to the main cases in this area which were:-
- Lister v Hesley Hall [2001] UKHL 22
- Dubai Aluminium Co. Limited v Salaam [2002] UKHL 48
- Mattis v Pollock [2003] EWCA Civ 887
- Bernard v Attorney General of Jamaica [2004] UKPC 47
- Bazley v Curry (1999) 174 DLR (4th) 45
- Jacobi v Griffiths (1999) 174 DLR (4th) 71
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 of what is fair and reasonable had to be answered in the context of teh closeness or otherwise of that connection. The answer to the question in each case depended upon its particular facts.
In the opinion of the Court of Appeal, there was a very close connection between the punch and the First Defendant’s employment. At the time of the punch, there was a melee the kind of which frequently occurred in such matches. This was all part of the game, and the throwing of punches was not uncommon when the scrum was breaking up. There was a very close connection between the First Defendant’s employment as a second row forward and his punching and injuring the Claimant as a prop on the other side. That close connection was supported by the wording of the contract. The fact that the First Defendant had other full time employment was irrelevant.
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 the club liable. In the view of the Court of Appeal, the answer to that question was yes. Rugby clubs should take proactive steps to eradicate foul play. In the case of Bazley McLachlin J had said that vicarious liability would be appropriate where there was a significant connection between the creation or enhancement of a risk and the wrong that accrued therefrom. The Court of Appeal would agree.
In addition the state of mind of the Claimant (insofar as he was aware of the risk of what might happen) was not capable of leading to the conclusion that it would not be fair and reasonable to hold the club vicariously responsible.
For that reason the appeal would be allowed.