Gravil v Carroll & Anor

An employer is vicariously liable for an employee’s intentional tort where it is so closely connected with what the employee was authorised or expected to do that it is fair and just to impose liability. The inquiry must focus on the nature of the employment and its connection with the tort, rather than on fairness in the abstract.

A deliberate assault during the ordinary incidents of an employed rugby player’s participation in a match may satisfy that test. Liability may arise where foul play is a reasonably incidental risk of the employment, even though it breaches the player’s contract, attracts disciplinary sanctions and does not advance the employer’s interests. Part-time employment and the club’s non-profit status do not prevent liability.

During a semi-professional rugby match, an employed Redruth player punched an opposing player in a melée following a scrum, causing a serious facial injury. The assailant was held liable in battery, but paid none of the assessed damages.

The trial judge dismissed the injured player’s claim that Redruth Rugby Football Club was vicariously liable. Gray J dismissed the first appeal. The Court of Appeal granted permission for a second appeal because liability for off-the-ball assaults during professional sport had wider potential importance.

The central issue was whether the assault was so closely connected with the player’s employment that it was fair and just to hold the club vicariously liable.

1. Appeal allowed. The club was vicariously liable for its employee’s battery. The punch was so closely connected with his employment as a rugby player that it was fair and just to hold the club responsible.

2. The governing inquiry was whether the tort was so closely connected with what the employee was authorised or expected to do that it could fairly and properly be regarded as committed in the ordinary course of employment. The court had to consider all the circumstances, while maintaining an intense focus on the nature of the employment and its connection with the particular tort. Fairness was not a separate, free-standing inquiry: Lister v Hesley Hall Ltd [2001] UKHL 22, Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, Mattis v Pollock [2003] EWCA Civ 887 and Bernard v Attorney General of Jamaica [2004] UKPC 47 applied.

3. The connection was very close. The employee had been engaged to play rugby and was doing so when he threw the punch. The melée and the assault were incidents of the match, rather than independent personal conduct. His employment did more than provide an opportunity for the assault. The punch also represented a failure to perform his contractual duty and breached express terms prohibiting assault and requiring compliance with the game’s rules.

4. The risk of a player punching an opponent was a reasonably incidental risk of employment to play rugby. Vicarious liability furthered both an adequate remedy and deterrence. Clubs could discipline players, take proactive steps against foul play and were better placed to insure. The player’s part-time status, the club’s non-profit character, the reasons for using employment contracts and the possibility that he would otherwise have played rugby did not alter the result.

5. The assault was not private retaliation analogous to Deatons Pty Ltd v Flew (1949) 79 CLR 370. It arose from a melée forming part of the game. The claimant’s awareness that punches could cause injury did not defeat vicarious liability, particularly as the defence of volenti non fit injuria had not been pleaded.

6. The court confined its decision to sport played under a contract of employment. It expressed no view about rugby or any other game played without such a contract.

1. Court of Appeal (Civil Division): Allowed the claimant’s second appeal and held Redruth Rugby Football Club vicariously liable for the employed player’s battery.
2. Queen’s Bench Division: Gray J dismissed the claimant’s first appeal from the rejection of the claim against the club.
3. Trial: His Honour Judge Harington held the player liable in battery and assessed damages at £8,500, but dismissed the vicarious liability claim against the club.