• In the case of Gravil v Carroll [2008] EWCA Civ 689, it was found that where an assault had taken place in a sports match, the employer club would be vicariously liable – it is sufficiently close enough to the employment.

Facts of Gravil v Carroll [2008] EWCA Civ 689

  • During a rugby match, Gravil (C) was punched by Redruth Rugby Football Club (D) player Carroll
  • C suffered injuries which required orbital surgery
  • Having suffered harm, C brought personal injury proceedings against both the player and the club
  • Carroll was employed on a part-time contract, having full-time employment elsewhere; his contract with the club indemnified any vicarious liability the club owed due to his acts or omissions

Issues in Gravil v Carroll [2008] EWCA Civ 689

  • Did the employer club have vicarious liability for the punch?
  • In other words, did the punch come within their scope of employment?

Held by the Court of Appeal

  • Appeal allowed – the employer football club was vicariously liable for the assault on the C by their employee Carroll during the course of his employment.

Sir Anthony Clarke MR

To hold the tortfeasors vicariously liable, Sir Anthony Clarke MR agreed with the judge who previously heard the case

  • “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.” [13]

Close connection test

  • “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” [21]

It should be fair and just to impose vicarious liability, and for such that is reasonably incidental

  • “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).” [21]

Applying to the present case, Sir Anthony Clarke MR noted:

A close connection was present, and the assault was reasonably incidental

  • “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 … there was still a melée of the kind which frequently occurs during rugby matches, notwithstanding the fact that the whistle has gone. … 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. … fairly be regarded as an ordinary (though undesirable) incident of a rugby match.” [23]

It was during his employment

  • “On any view of the relevant test, the first defendant was acting in the course of his employment when he punched the claimant … it was an act done in the course of that employment.” [25]

The relationship between the player and club was close enough to hold the club liable fairly and justly

  • “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. … 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.” [26]

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