Gravil v Carroll and Another
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR |
| Judgment Date | 18 June 2008 |
| Neutral Citation | [2008] EWCA Civ 689 |
| Docket Number | Case No: B3/2007/1593 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 June 2008 |
[2008] EWCA CIV 689
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
Sir Anthony Clarke Mr
Lady Justice Smith and
Lord Justice Richards
Case No: B3/2007/1593
Martin Seaward (instructed by Messrs Cramer Richards) for the Appellant
Richard Stead (instructed by Messrs CIP) for the Respondent
Introduction
This is the judgment of the court:
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.
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
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.
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
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 …”
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.
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
….
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 ….”
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.”
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.
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...
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