Sports law – Tort – Trespass to the person – Employment – Vicarious liability – Incident during professional rugby game – ‘Off-the-ball’ incident
C and D1 were semi-professional rugby players. During a National League Division 2 rugby union match, D1, who was employed under contract as a player for D2, punched C. C successfully brought a claim for trespass to the person against D1, but his claim against D2 for vicarious liability failed. C’s appeal from the trial judge failed. C was given permission to appeal on the basis that the issue of liability for “off-the-ball” assaults was of sufficient potential importance.
Whether D2 was vicariously liable to C for the consequences of D1’s tort.
The trial judge had applied the correct test by asking whether the tort was so closely connected with the employment that it would be fair and just to hold the employers vicariously liable. Upon a review of the authorities on “unauthorised” acts, it was clear that the court must take account of all the circumstances of the case. 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. On the facts, although the punch was a breach of an express term of the contract, the act was committed during the course of D1’s employment, and the close relationship between the punch and the employment was such that it was fair and just to hold D2 vicariously liable.
The fact that the punch was a “serious breach of contract on the part of the first defendant”, far from taking the act outside the scope of the employment, served instead to emphasise the “close connection” between the tort and the employment. Although the judgment contains a useful analysis of “off-the-ball” assaults in general, their Lordships stressed that the judgment was not intended to apply to the playing of sports where no contract of employment exists.