Gravil v Carroll & Anor [2008] EWCA Civ 689

[2008] EWCA Civ 689Case No B3/2007/1593
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Hon Mr Justice Gray
U220070301
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/06/2008
Before
SIR ANTHONY CLARKE MRLADY JUSTICE SMITHLORD JUSTICE RICHARDS
Between
ANDREW GRAVILClaimant/
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Martin Seaward (instructed by Messrs Cramer Richards) for AppellantRichard Stead (instructed by Messrs CIP) for Respondent
JudgmentSir Anthony Clarke MR:IntroductionThis is the judgment of the court:
[1]On 29 October 2005 the first defendant, Richard Carroll, punched the claimant, Andrew Gravil, in the course of a first XV National League Division 2 rugby union match between Halifax Rugby Football Club and Redruth Rugby Football Club. Both the claimant and the first defendant were semi-professional rugby players and both had other full time employment. The question in this appeal is whether the second defendant, Redruth Rugby Football Club Ltd, is vicariously liable for the first defendant’s tortious assault on the claimant. Both the trial judge, His Honour Judge Harington, and the judge who heard the first appeal, Gray J (‘the judge’), held that it was not.[2]The first defendant took no part in the trial and the trial judge held him liable to the claimant. He was plainly liable for an actionable trespass to the person, namely battery. Damages were assessed at £8,500, none of which has been paid. The first defendant did not appeal. The claimant appealed to the judge against the dismissal of his claim against the second defendant but his appeal failed. The judge refused permission to appeal to this court but permission was given on paper by Hughes LJ for this second appeal, not on the basis that the appeal raises any important point of legal principle, but on the basis that the suggested liability for ‘off-the-ball’ assaults committed during games is of sufficient potential importance for professional sporting clubs to provide a compelling reason for this court to entertain an appeal.

The facts

[3]The facts are not in dispute. They are clear from the DVD which, like both courts below, we have seen. We take them largely from the judge’s account of the findings of the trial judge. The claimant was playing as a prop forward for Halifax and the first defendant was playing in the second row for Redruth. At the start of the second half, in the forty-sixth minute, following a scrum, an altercation developed involving the claimant and two Redruth players, one of whom, the hooker, backed away. At that point the first defendant threw a punch which struck the claimant and caused him to sustain a blow-out fracture of the right orbit, which required reconstructive orbital surgery. The claimant has made a good but not a complete recovery from his injury. He did not play rugby again until April 2006 but has we think played since. In his schedule of special damages he claimed over £4,000.[4]It is clear from the DVD that, when the punch was thrown, although the whistle had gone and (as the trial judge found) the Redruth hooker had backed away, there remained something of a melée of the kind which frequently occurs during rugby matches. As a result of the punch, the first defendant was shown a yellow card by the referee, but following the match Halifax cited the first defendant, alleging that he had struck an opponent contrary to Law 10(4)(a). On 9 October 2006 at an RFU disciplinary hearing the first defendant admitted that he deliberately assaulted the claimant but denied premeditation and said that he had been provoked. The panel held that there may have been a degree of provocation but that the first defendant’s conduct was not in retaliation for anything which had been done to him personally. The panel concluded that the match official’s decision was wrong and that a red card would have been the appropriate sanction. It suspended the first defendant for eight weeks.

The employment

[5]At the time of the incident it was the first defendant’s second season at Redruth. He had a contract with the second defendant which is contained in a letter dated 10 May 2006 which was written to him on behalf of the club and counter-signed by him. The second defendant and the club are treated as synonymous in the contract and it is therefore convenient for us to refer to the second defendant as ‘the club’ in this judgment. The letter to the first defendant expressly “confirms your employment” by the club and there are many indications in the letter that the contract is intended to be a contract of employment. Indeed it expressly states:
“This letter and Schedule is a binding Contract of Employment which contains legal obligations …”
[6]The contract expressly provided that the second defendant would be a part time employee of the club and that his employment would end on 31 May 2006, although it was extended for a further year. It further provided that he was to be registered under the relevant RFU rules and that he would receive a match fee of £250 and a win bonus of £50, in each case whether he played or was on the bench as an official replacement. In addition the club met some of his expenses.[7]The contract made certain provisions relevant to foul play, including:
“3.2 If you receive a yellow or red card for foul play in any match you will be liable to pay to the club the cost levied on the club by the RFU in respect of each card and by signing this agreement you authorise the deduction of any such cost from any remuneration due to you from the club.”
The Schedule contained a section entitled “DUTIES AND OBLIGATIONS OF THE PLAYER”, which included:
“1. The player shall make himself available for all matches and for training on at least two occasions a week as and when required by the Club unless prevented by work commitments which cannot be re-arranged or other cause which the Rugby Secretary or Chief Coach agrees so prevents him …. 2. Save as provided below the Player must not be retained in any capacity by or register with any other Rugby Club or team, train or play Rugby Football or provide his services as a Rugby player otherwise than for the Club, during the period of the employment, unless he has obtained the consent of the Club .… 3. At all times, the Player will observe the highest standards in his conduct both on and off the field, using his best endeavours to promote Rugby, its image, the Club and its interests; and not do or omit to do or permit to be done anything which is likely to damage Rugby or bring it into disrepute. 3.1 The Player shall not: 3.1.1 physically assault or verbally abuse match officials, opponents, spectators, colleagues 3.1.2 bring the Club, the RFU or Rugby into disrepute …. 3.2 The Player shall: …. 3.2.2 at all times comply with and observe all IRFB and RFU rules …. …. 3.2.6 play to the best of his ability in all matches in which he is selected to play for the Club ….” …. 3.2 The Player shall: …. …. 3.2.6 play to the best of his ability in all matches in which he is selected to play for the Club ….”
[8]Finally, under the heading of DUTIES AND RESPONSIBILITIES OF THE CLUB, the Schedule included:
“6.1 This agreement (which comprises your letter of Appointment and this Schedule) constitutes a Contract of Employment with the Club and shall be governed by English Law. …. 6.4 The Club may be vicariously liable for the acts or omissions of the Player during the Employment. The Player hereby agrees to indemnify the Club and to keep it indemnified on a continuing basis in respect of any liability, losses, costs, claims, demands and damages made against or incurred by the Club in respect of the conduct of the Player where such conduct results in a criminal conviction for the Player, is negligent or otherwise constitutes a breach of this Agreement.”
[9]It is clear that the effect of the contract was that the first defendant was employed by the club to play rugby for it and that, while doing so, he was subject to certain express obligations. That is so, even though he was only a part time rugby player and had other full time employment. The claimant was in a similar position with Halifax. For example, he too received a fee. Both players were, therefore, semi-professional and both had other full time employment. The trial judge noted that the claimant said that he played rugby because he loved the game but that he did not hear any oral evidence from the first defendant. There seems no reason to think that he did not also play the game for the love of it. The trial judge further noted that the evidence was that the club provided rugby for the local community, that it did not make a profit and that it provided its players with a contract to avoid losing them to neighbouring clubs. All that is no doubt so, but the fact remains that, when playing rugby for the club, he was doing so on the terms of the contract of employment summarised above.[10]It was only some ten years ago that clubs like Halifax and Redruth began to employ their players. We agree with the trial judge that until then no question of vicarious liability on the part of such clubs could have arisen. In addition there was some debate as to whether the players would have taken part even if they had not been under contract and as to whether the reason for contracts being entered into was to prevent the players being poached. The answers to those questions seem to us to be irrelevant to the question for decision in this appeal. As we see it, the fact that the second defendant was employed by Redruth is the critical factor in the appeal. The evidence was that for some three or four seasons before the trial all the Redruth players were under contract. The evidence did not show whether the same was true of Halifax.

The principles

[11]As already stated, the question for decision is whether, on the facts set out above, the club is vicariously liable to the claimant for the consequences of the first defendant’s tort, in punching him in the face and causing him injury. The long-established rule is that an employer is vicariously liable for the torts of his employee committed in the course of the employment. However, problems can arise and arose in the present case, where the employer contends 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 is and is not vicariously liable can be difficult but the principled approach which should be applied has been considered in a number of authorities.[12]Like the judge and the trial judge, we were referred to the relevant cases, especially to Lister v Hesley Hall Limited [2001] UKHL 22, [2002] 1 AC 215, Dubai Aluminium Co Limited v Salaam [2002] UKHL 48, [2003] 2 AC 366, Mattis v Pollock (trading as Flamingos Nightclub) [2003] EWCA Civ 887, [2003] 1WLR 2158, and Bernard v Attorney General of Jamaica [2004] UKPC 47. At [18] of his judgment the judge noted that in Lister Lord Steyn, with whom Lord Hutton and Lord Hobhouse agreed, suggested that two Canadian cases would in future be the starting point, namely Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71. The judge said that the question now is whether the employee’s tort was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. The judge further noted that earlier in his speech, at [10] Lord Steyn said that the judgments in those two Canadian cases examined in detail the circumstances in which, though an employer is not “at fault”, it might still be “fair” that it should bear responsibility for the tortious conduct of its employees.[13]In our opinion the judge correctly stated the question as being whether the tort was so closely connected with the employment that it would be fair and just to hold the employers vicariously liable. Lord Steyn emphasised at [17] the importance of an intense focus on the connection between the nature of the employment and the tort. At [24] he suggested that the court should concentrate on the connection between the nature of the employment and the particular tort. In Lister the focus was upon alleged sexual abuse by a warden of a school boarding house. At [28] Lord Steyn said that the question was whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold his employers vicariously liable.[14]Lord Clyde approached the matter in much the same way at [37], after referring to a passage in the first edition of Salmond, Law of Torts in 1907 (before the decision in Lloyd v Grace, Smith & Co [1912] AC 716), which stated 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:
“37. That latter observation seems to me to be of particular importance. 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. The point is made by Salmond even in the first edition, at p 84, where he states: “on the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible.”
What has essentially to be considered is the connection, if any between the act in question 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. ”[15]Lord Clyde further suggested at [43] that a question for consideration is whether the act complained of is incidental to and thus within the scope of the relevant employment. See also his contrast at [44] with acts of passion and resentment (as in Deatons Pty Ltd v Flew (1949) 79 CLR 370) or personal spite (as in Irving v Post Office [1987] IRLR 289) or an independent act not sufficiently connected with the employment (as in Aldred v Nacanco [1987] IRLR 292), although in the case of independent acts compare Dubai Aluminium per Lord Millett at [123] and Mattis v Pollock per Judge LJ, giving the judgment of this court, at [19].[16]Lord Hobhouse perhaps approached the problem somewhat differently. He said at [59] that whether or not an act comes within the scope of the employment depends upon what the employee is employed to do. If the act amounts to a failure to perform his duty, the act comes within the scope of his employment. On the other hand, if the employment merely gives the employee the opportunity to do what he did, without more, it will not. The relevant connection with the employment must be something which is not a casual coincidence but has the requisite relationship to the employment. See also at [60]. Lord Millett too focused at [70] on the closeness of the connection between the employee’s duties and his wrongdoing. He did the same at [121] and [129] of Dubai Aluminium, albeit in the context of dishonest assistance.[17]In Dubai Aluminium the leading speech was given by Lord Nicholls, with whom Lord Slynn and Lord Hutton agreed. Lord Nicholls considered the principles in some detail at [21-33] and at [36] again stressed the importance of a close connection between the tort and the employment.[18]In Mattis v Pollock this court, which comprised Judge and Dyson LJJ and Pumfrey J, considered the principles in some detail in a case in which a doorman employed by the owner of a night club was held vicariously responsible where the doorman stabbed the claimant with a knife having left the club but returned (still in working hours) bent on revenge. The relevance of that case here is not the striking nature of the facts, which are very different from these, but the statement at [19] that the principle to be derived from Lister and Dubai Aluminium requires a “deceptively simple question” to be answered. That question is that to which we referred earlier, namely whether the tort was so closely connected with what was authorised or expected of the employee that it would be fair and just to hold the employer vicariously responsible.[19]These principles were affirmed by the Privy Council in Bernard v Attorney General of Jamaica, where the judgment of the Judicial Committee was given by Lord Steyn. At [18] he summarised the relevant principles:
“18. In Lister a warden of a school boarding house had sexually abused resident children. The question was whether the employers were vicariously liable. In the leading opinion a single ultimate was question posed, namely [at 230C]: “…whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.”
The four substantial opinions delivered in Lister revealed that all the Law Lords agreed that this was the right question. On the facts the members of the House unanimously took the view that the answer was “yes” because the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in the boarding house. This decision did not come out of the blue. On the contrary, it was a development based on a line of decisions of high authority dating from Lloyd v Grace, Smith & Co [1912] AC 716 where vicarious liability was found established in cases of intentional wrongs. Lister is, however, important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor’s employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond’s well known formula, the question whether the act is “a wrongful and unauthorised mode of doing some act authorised by the master” is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21st ed., 1996, 443. This test may invite a negative answer, with terminological quibble, even where there is a very close connection between the tort and the functions of the employee making it fair and just to impose vicarious liability. 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….” “…whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.” The four substantial opinions delivered in Lister revealed that all the Law Lords agreed that this was the right question. On the facts the members of the House unanimously took the view that the answer was “yes” because the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in the boarding house. This decision did not come out of the blue. On the contrary, it was a development based on a line of decisions of high authority dating from Lloyd v Grace, Smith & Co [1912] AC 716 where vicarious liability was found established in cases of intentional wrongs. Lister is, however, important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor’s employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond’s well known formula, the question whether the act is “a wrongful and unauthorised mode of doing some act authorised by the master” is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21st ed., 1996, 443. This test may invite a negative answer, with terminological quibble, even where there is a very close connection between the tort and the functions of the employee making it fair and just to impose vicarious liability. 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….”[20]Lord Steyn then referred in [19] to Dubai Aluminium and the leading opinion of Lord Nicholls, from which he cited this passage from [23]:
“…Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.”

Lord Steyn added:

“Throughout the judgments there is an emphasis on the proposition 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.”
[21]As we see it, the authorities show that the essential question is that posed in Lister and adopted in Mattis, namely whether the tort is 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. In answering that question the court must take account of all the circumstances of the case, as Lord Steyn put it, looking at the matter in the round. The authorities show that it will ordinarily be fair and just to hold the employer liable where the wrongful conduct may fairly and properly be regarded as done while acting in the ordinary course of the employee’s employment (per Lord Nicholls). This is because an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business being carried on (per Lord Steyn).[22]In these circumstances we would accept Mr Seaward’s submission that it is not appropriate to ask a broader question, namely whether in all the circumstances of the case it would be fair and just to hold the club liable. The critical factor is the nature of the employment and the closeness (or otherwise) of the connection between the employment and the tort. The question what is fair and reasonable must be answered in the context of the closeness or otherwise of that connection. The answer to the question in each case of course depends upon its particular facts.

Application to the facts

[23]There was in our opinion a very close connection between the punch and the first defendant’s employment. He was employed to play rugby for the club and was doing so at the time as a second row forward. As we said in [4] above, when he punched the claimant there was still a melée of the kind which frequently occurs during rugby matches, notwithstanding the fact that the whistle has gone. The DVD shows that the melée was part of the game. It was certainly not in any way independent of it. The melée was just the kind of thing that both clubs would have expected to occur. Regrettably the throwing of punches is not uncommon in situations like this, when the scrum is breaking up after the whistle has gone. Indeed, they can fairly be regarded as an ordinary (though undesirable) incident of a rugby match. In these circumstances there was in our opinion a close, indeed 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.[24]That closeness can be seen both from the facts just described and from the terms of the contract. The contract provides in clause 3 of the Schedule for the player to abide by the rules of the game and expressly contemplates in clause 3.2 of the contract itself that he may receive a yellow or red card. The Schedule provides in clause 3 that the player must not bring the game into disrepute and in clause3.1.1 that he must not physically assault an opponent. The punch was thus a breach of an express term of the contract. The first defendant was also in breach of clauses3.1.2 and 3.2.2. By the express terms of clause 6.4 of the Schedule, the contract expressly contemplates that the club may be vicariously liable for the acts of the player during the employment. That can only be on the basis that the act might be committed in the course of the employment, that is while playing rugby for the club.[25]The fact that the first defendant, like the claimant, had other ‘full time’ employment is irrelevant. On any view of the relevant test, the first defendant was acting in the course of his employment when he punched the claimant. Not only was there a close connection between the punch and his employment but the punch amounted, in the words of Lord Hobhouse, to a failure to perform his duty. His employment as a second row forward did not merely give the first defendant the opportunity to punch the claimant, it was an act done in the course of that employment.[26]The next question is whether the close relationship between the punch and the employment is such that it would be fair and just to hold the club liable. In our judgment the answer to that question is plainly yes. It is now recognised that it is possible to be very seriously injured as a result of foul play during a rugby match. It is 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. As we see it, this involves clubs taking proactive steps to stamp it out. There is an obvious temptation for clubs to turn a blind eye to foul play. They naturally want their side to win and, no doubt, to play hard to do so. The line between playing hard and playing dirty may be seen as a fine one. The temptation for players to cross the line in the scrum may be considerable unless active steps are taken by clubs to deter them from doing so.[27]We accept Mr Seaward’s submission that there were provisions in the contract which enabled the club to seek to deter such fouls. Clause 4 of the Schedule provides for disciplinary procedures and appropriate penalties and, as set out above, the contract includes indemnity provisions. It is perhaps striking that here the club did not take any disciplinary action against the first defendant. Perhaps it would have done if it had appreciated that there was a risk of liability in such cases in the future.[28]In the course of her judgment in Bazley McClachlin J said at [41] 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. She added:
“Where this is so, vicarious liability will serve the policy considerations of an adequate and just remedy and deterrence.”
We respectfully agree with her that those are indeed the relevant considerations. In our opinion both are in play here. Both the desirability of an adequate and just remedy for the claimant on the one hand and deterrence of the club by bringing home this liability on the other, so as to prevent or minimise the risk of foul play in the future, lead to the conclusion that it would be fair and just to hold that the club is vicariously liable on the facts of this case. Clubs are no doubt better placed than individual players to obtain insurance against liability of this kind, although we recognise that some insurers exclude liability for criminal acts.[29]Mr Stead submits that this was not a case in which the employment of the first defendant was responsible (as McClachlin J put it) for the creation or enhancement of a risk because he would have played rugby whether employed to do so or not. We do not accept that submission. Whether or not the first defendant would have played rugby for a club even if he could not do so under a contract of employment seems to us either wholly or largely irrelevant. We do not suggest that a club would be vicariously liable for a tort like this in the absence of a contract but this player was playing rugby pursuant to the terms of a contract of employment and, in our judgment, the principles summarised above apply to this employer in respect of this employment as they do to any other employer. To use the words of Lord Steyn, this employer ought to be held liable because the risk of one of its employees punching another player and causing him injury was a reasonably incidental risk to the type of employment being carried on, namely playing rugby.[30]Some emphasis has been placed on the fact that the claimant was aware of the risk of being injured by a punch. That is perhaps a relevant factor but it was not pleaded at the trial that this was a case of volenti non fit injuria. It was not suggested, for example, that the first defendant was not himself liable to the claimant. In these circumstances the state of mind of the claimant is not, in our judgment, capable of leading to the conclusion that it would not be fair and reasonable to hold the club vicariously responsible.[31]Why then did both the trial judge and the judge reach a different conclusion? We do not read the judgment of the trial judge as concluding that there was not a close connection between the employment and the injury. The basis upon which he concluded that the first defendant was not vicariously liable is we think that it would not be fair and just so to hold, if the matter is viewed broadly. Thus he stressed at [16] and [17] that the first defendant was a semi-professional and that the club is a non-profit company providing rugby for the local community and the fee was paid to ensure that he was not poached. The players were playing for fun and not as part of their full time employment and in the knowledge that they could be seriously injured. He added that, at any rate until recently, a side might have some employed players and some who were not employed and it would not be just to hold the club vicariously responsible for the torts of the former but not the latter. He concluded by saying at [18] that, if this had been a fully professional game, his decision would probably have been different.[32]Given that all the Redruth players were employed to play, it thus appears that the judge’s view depended on the fact that they did so under part time and not full time contracts. We do not, however think that, either singly or together, the trial judge’s reasons are capable of leading to the conclusion that it was not fair and reasonable to hold the club liable.[33]Before the judge (and before us) Mr Stead accepted that there was a connection, even a close connection, between the employment and the injury but submitted that it was fortuitous, in the sense that it would or could have occurred irrespective of the first defendant’s employment with the club. He also submitted that part time contracts were necessary to prevent poaching and that the claimant was aware of the risk of injury. He further submitted that, even if there was a close connection between the employment and the injury, this was not in all the circumstances a case in which fairness and justice required that the club be held liable.[34]The judge set out Mr Stead’s submissions at [34] and at [35] said that Mattis showed that it was legitimate for the court to cast the net wide when deciding whether the connection between the tortious act and the employment was so close as to render it fair to impose vicarious liability on the employer. We agree that it is important to take account of all the circumstances of the case, provided that the focus is on whether the close connection makes it fair and just. The question for decision is not, however, a broad question irrespective of the closeness of the connection between the employment and the tort.[35]At [36] the judge referred to the terms of the contract. At [37] he recognised that a substantial degree of physical force and perhaps violence is inherent in professional and (as he put it) no doubt semi-professional rugby and that it can be said in that sense that the first defendant’s wrongful act was related to the physical confrontation inherent in the club’s enterprise. He thus accepted, as we see it, that the risk of injury was inherent in the employment. However, that consideration was mitigated by the fact that the club was arranging rugby for semi-professional players but not for commercial reasons. It is true that the club was not a profit making enterprise but, we do not see how that leads or tends to lead to the conclusion that the question whether the connection between the employment and the tort was so close as to make it fair and just to hold the club liable should be answered in the negative.[36]Next the judge said that, while foul play was common in games of this kind, there were different kinds of foul play and red cards were rare. He added that for one of its players to receive a red card or indeed a yellow card, which (as in the first defendant’s case) would lead to his being sent to the sin bin for ten minutes, did not advance the club’s interests. So stated, we agree that that is so but it does not seem to us to be relevant. The concern is that undetected foul play may be perceived to advance the club’s interests. The purpose of the disciplinary codes and the deterrence to which we referred above is to stop the foul play. This seems to us to be a point in favour of vicarious liability and not against it.[37]At [38] and [39] the judge referred to cases in which it has been held that an act of private retaliation will not lead to vicarious liability. He did so with particular regard to Deatons case. In that case the plaintiff alleged that a barmaid threw a glass of beer at him and caused him injury. His case was that it was an unprovoked and unjustified assault. It was held by the High Court of Australia that the barmaid’s employer could not be liable because, as Latham CJ put it at page 379, the act of the barmaid was not expressly authorised and was not so connected with any authorised act as to be a mode of doing it but was an independent personal act which was not connected with or incidental in any manner to the work which the barmaid was employed to perform.[38]The judge placed some reliance upon this decision. He said at [39]:
“39. It seems to me that there is a parallel to be drawn between the facts in Deatons and the present case. It is unclear from the evidence (including the DVD) what, if anything, induced Mr Carroll to punch Mr Gravil in the face. I am prepared to assume that it was some foul play or perceived foul play on the part of Mr Gravil or perhaps one of his team mates which provoked Mr Carroll to retaliate in the violent way that he did. But that does not in my opinion signify that Mr Carroll’s conduct is not to be characterised as “private retaliation” of the kind in which the bar-maid was found by the jury to have engaged in Deatons. There is no sense in which Mr Carroll can be said to be retaliating on behalf of or for the benefit of Redruth. It is indisputably conduct of which Redruth had every reason to disapprove and which amounted to a serious breach of contract on Mr Carroll’s part.”
[39]We are unable to agree with that analysis. We have some doubt whether the courts today would approach the alleged facts of Deatons in quite the way the High Court of Australia did in 1949 but, whether that is so or not, we do not think that there is any parallel between that case and this. This was not a case of private retaliation of the kind identified in Deatons. As described earlier, it was a punch thrown in a melée which persisted after a scrum. The melée and the punch were in a real sense part of the game. It should not have been thrown and was a tortious (even criminal) assault but it was an incident of the game and thus of the first defendant’s employment. In our judgment Deatons is of no assistance to the club here. We agree with the judge that the punch was a serious breach of contract on the part of the first defendant but, as we see it, that fact emphasises, as Lord Hobhouse indicated, the close connection between the tort and the employment not the reverse.[40]In all the circumstances our conclusion is that neither the reasoning of the trial judge nor that of the judge, which (as the judge recognised) was not quite the same, leads to a negative answer to the relevant question. We answer the question whether the tort was so closely connected with the employment, namely the playing of rugby for the club, that it would be fair and just to hold the club vicariously responsible for the injury to the claimant in the affirmative. The punch is fairly and properly regarded as having been carried out while the first defendant was acting in the ordinary course of his employment, albeit part time employment, as a rugby player. Looking at the matter broadly, it is fair and just to hold the club liable for the punch in circumstances in which it can fairly be regarded as a reasonably incidental risk to the playing of rugby pursuant to the contract.

CONCLUSION

[41]For these reasons we would allow the appeal. We stress that in doing so we do not intend anything in this judgment to be relevant to the playing of rugby or any other game otherwise than under a contract of employment.

Cited in 8 later judgments