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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gravil v Carroll & Anor  EWCA Civ 689 (18 June 2008)
Cite as:  ICR 1222,  IRLR 829,  EWCA Civ 689
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Hon Mr Justice Gray
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE RICHARDS
| ANDREW GRAVIL
|- and -
REDRUTH RUGBY FOOTBALL CLUB
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Stead (instructed by Messrs CIP) for the Respondent
Crown Copyright ©
Sir Anthony Clarke MR:
This is the judgment of the court:
"This letter and Schedule is a binding Contract of Employment which contains legal obligations …"
"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 …."
"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."
"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. "
"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  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…."
"…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."
Application to the facts
"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.
"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."