An employer can be found to be vicariously liable for delicts committed by an employee in the course of his employment, such as where he harms another. The Court of Appeal has recently ruled on the application of this principle in a sporting context in Gravil v Carroll and Another. The judgment will remind sporting organisations of their potential liability for the often unpredictable actions of their employee players.
In October 2005, Gravil was playing rugby for Halifax when he was punched by Carroll, a Redruth player, just after the final whistle had blown. Gravil sustained a fracture of the right orbit which required reconstructive surgery.
The question before the Court was whether Carroll's tort was so closely connected with his employment that it would be fair and just to hold his employers vicariously liable for his actions. An employer is responsible for the acts of his employee if those acts are a wrongful and unauthorised mode of undertaking an act that is itself authorised by the employer. If such an act amounts to a failure on the employee's part to perform his duty then the act will come within the scope of his employment. The Court of Appeal therefore considered, firstly, whether or not Carroll's acts (i.e. punching Gravil) were authorised or expected of him and, secondly, whether it would be fair and just to find the club vicariously responsible for those actions, the wrongful conduct being fairly and properly regarded as being within the ordinary course of Carroll's employment with the club.
Carroll's contract of employment set out his duties and obligations as a player, which included clauses expressly prohibiting a player from bringing the game into disrepute and physically assaulting an opponent. In punching Gravil, Carroll was in breach of an express term of his employment contract with the club.
The Court stated that when Carroll punched Gravil there was still a mêlée of the kind which frequently occurs in rugby matches. It was held that the mêlée was part of the game rather than being independent of it and was of the kind that both clubs would have expected to occur. The throwing of punches was not uncommon in such a situation and, whilst undesirable, it could fairly be regarded as an ordinary incident of a rugby match. As such, it was held that there was a very close connection between Carroll's employment and his punching and injuring of Gravil.
The Court of Appeal considered that it would be fair and just to hold Redruth RFC vicariously liable to Gravil, it being incumbent on both players and clubs to take all reasonable steps to eradicate, or at least minimise, the risk of foul play in a game that might cause injury. It was held that this would involve pro-active steps being taken by rugby football clubs to stamp out foul play. It was desirable for there to be an adequate and just remedy for the Claimant on the one hand, and on the other for there to be a deterrent by making the club liable in order to prevent or minimise the risk of foul play in the future.
The Court of Appeal was keen to stress that it was not suggesting that a rugby club would be liable for a tort of this nature in the absence of a contract of employment. However, the decision does highlight that where there is a wrongful act outwith the rules of the game, but which is closely connected to what commonly occurs on the field of play then, providing there is a contract of employment, the Courts will be inclined to hold the employer vicariously liable for the actions of one of its players.