Sports employment – Rugby - Trespass to the person - Assault by rugby player during rugby match - Close connection between tort and employment

Andrew Gravil v (1) Richard Carroll (2) Redruth Rugby Football Club: CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lords Justice Smith, Richards): 18 June 2008

The appellant (G), a rugby player, appealed against a decision that the second respondent rugby club (R) was not vicariously liable for the tortious assault on him by the first respondent rugby player (C).

Both G and C were semi-professional rugby players. C had a contract of employment with R. The contract expressly stated that C should not physically assault an opponent and that R might be vicariously liable for C’s acts during his employment. After the whistle had been blown in a rugby match between R, for which C had been playing as a second-row forward, and another rugby club, for which G had been playing as a prop forward, C had punched G in a melee and had caused him injury. C was held liable for the assault and G was awarded damages.

Held: C’s wrongful act was so closely connected with his employment that it would be fair and just to hold R vicariously responsible, Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215, Mattis v Pollock (t/a Flamingos Nightclub)[2003] EWCA Civ 887, [2003] 1 WLR 2158 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366 applying, and Bernard v Attorney General of Jamaica [2004] UKPC 47, [2005] IRLR 398, Bazley v Curry [1999] 174 DLR (4th) 45 Sup Ct (Can) and Jacobi v Griffiths [1999] 174 DLR (4th) 71 0 ­ considered. There was a very close connection between the punch and C’s employment. He had been employed to play rugby for R and had been doing so at the time as a second-row ­ forward. When he had punched G, there had been a melee of the kind that frequently occurred during rugby matches, notwithstanding the fact that the whistle had been blown. The melee had been part of the game and not independent of it.

Throwing of punches after the ­ whistle could fairly be regarded as an ordinary incident of a rugby match. That closeness could be seen both from the facts and from the terms of the contract. The punch was a breach of the express term of the contract that stated that C should not ­ physically assault an opponent. C was also in breach of other terms of the contract by bringing the club into ­ disrepute and failing to comply with the rules of governing bodies of rugby union.

The contract also expressly ­ contemplated that R may be ­ vicariously liable for C’s acts during his employment. That could only be on the basis that the act might be committed in the course of the employment, namely while playing rugby for R. On any view, C had been acting in the course of his employment when he had punched G. Not only was there a close connection between the punch and his employment but the punch amounted to a failure to perform his duty. There were provisions in the ­ contract that enabled R to seek to deter foul play. That was a point in favour of vicarious liability. Looking at the matter broadly, it was fair and just to hold R liable for the punch because the risk of C punching another player and causing him injury was a reasonably incidental risk to the playing of rugby pursuant to the contract, Bazley v Curry and Deatons Pty v Flew 79 CLR 370 0 considered.

Appeal allowed.

Martin Seaward (instructed by Cramer Richards) for the appellant; Richard Stead (instructed by CIP) for the respondent.