Player And The Role of Burnston Rovers

Introduction

Tort law is applicable in cases where an injury is caused by one player’s negligent or deliberate act to another player. The principal areas of tort law that are involved include vicarious liability of the employer club for the tort of the employee. This report concerns the issue of vicarious liability of the club, Burnston Rovers, for the act of one of its players, Shane Roonard in assaulting a player of another club, Ashley Paul. This report will consider the arguments for both the appellant, Ashley Paul, and the respondents, Shane Roonard and Burnstan Rovers.

Arguments for the Appellant (Ashley Paul )

Ashley Paul can contend that Burnston Rovers are vicariously liable for the injury caused to him because the assault was carried out in the course of the employment and it is fair and just to impose vicarious liability on the club to which Shane Roonard belongs. In order to support these contentions, the law and authority that is laid down in a number of cases on viarious liability and close connection test can be used.

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The principle of “qui facit per alium facit per se” is used to explain vicarious liability or the liability of one person for the acts done by another, because he who acts through another is deemed to have acted for himself. In the law of tort, employer’s vicarious liability arises for a tort committed by its employee during the course of the employment. Vicarious liability in this context is also applied to sports contexts. Where the player employed by a club injures another player, such injury being also a tort for which civil liability may arise, the claimant may join the club as a respondent to a case for damages for injury. In such cases, the contract of employment between the player and the club is also relevant to the issue, and the fact that the club or employer has a contract of employment with the tortfeasor player, will play a crucial role in deciding the issue of vicarious liability against the club. According to James and McArdle, the vicarious liability of football clubs for the negligent and tortious acts of its employees has now reached an uncontested status. What this goes to show is that the principle of vicarious liability of the sports clubs in such cases is well established.

As per the Salmond test, vicarious liability arises when the wrongful act is authorised by the employer; or when the employee performs a lawful and authorised act in an unlawful and unauthorised manner. A test for the imposition of vicarious liability has been developed by the courts in the form of the ‘close connection’ test, as per which, employer is held liable for the torts of the employees where there is a close connection between the functions of the employee and the tort committed by him. The close connection test has been developed extensively by the courts and has also been applied in the sports injuries cases. For the application of the close connection test, it is important to establish a relationship of employment between the employer and the tortfeasor employee. Without establishing such relationship, it is not possible to apply a close connection test. However, recent Supreme Court judgments have gone to widen the scope of close connection test by holding employers vicariously liable even where there is an ‘employment like’ relationship and not an actual contract of employment.

Different authorities in the tort law show how the close connection test has been applied by the courts for the purpose of fixing vicarious liability on the employer. In Lister v Hesley Hall Ltd, in which the warden of a boarding house was found guilty of sexual abuse of boarding house pupils, the House of Lords held that the warden's actions were so closely connected with his employment and that was fair and just to hold the employer vicariously liable. The question raised on employer having not authorised these acts was not held relevant to the issue and instead the court used the close connection test for deciding the matter. Similarly, in another case involving sexual abuse of a school boy on a school trip by the headmaster was held to have incurred vicarious liability on the school as the acts were closely related to the employment. In Mattis, the Court of Appeal held the nightclub employer vicariously liable for the actions of its doorman in injuring a guest due to a close connection between the employment of the doorman, which requires violent, aggressive nature to keep a check on the guests and the violent behaviour towards a guest. In Dubai Aluminium case, the close connection test was applied by the House of Lords to hold the innocent co-partners in the firm as vicariously liable for their partner’s fraudulent behaviour. In Maga, the Court of Appeal held that Church vicariously liable for the actions of its priest in sexually abusing a boy through application of close connection test and holding it fair and just to hold the Church liable for the priest’s action.

In none of the cases discussed above, have the employers authorised their employees to commit the specific wrongs that are involved in the case, making the application of the Salmond test difficult. However, the courts have applied the close connection test to see the nexus between the employment functions of the employee and the acts committed by it and if such a close connection is found, and the application of vicarious liability is held to be fair and just, the courts have held the employers to be vicariously liable. The same principles are also applicable to sports injuries and torts related to the same as the case discussed below clarifies.

In Gravil v Carroll, the court applied the close connection test to rule that the Rugby club was vicariously liable for the injury caused by its player to another player during the course of the match. The facts of the case show that the claimant and the first defendant, were playing a semi-professional rugby match where the first defendant punched the claimant causing him injury that required reconstructive orbital surgery. The second defendant was Redruth Rugby Football Club, which was the employer of the first defendant with whom it had a contract of employment. The contract of employment had express conditions that were applicable to the first defendant, including the obligation to pay fines incurred due to his actions. In this case, the Court of Appeal raised important issues and applied the principles of law that are also applicable to the present case. The court considered that the long-established rule is that the employer is vicariously liable for the torts of his employee committed in the course of the employment. The authorities on this issue also show that the employer will also be vicariously liable for his employees’ actions, when these actions are closely connected to his employment.

The questions for the application of the close connection test are whether the tort is closely connected with the employment, that is, authorised by or expected of the employee; and whether it would be fair and just to hold the employer vicariously responsible. In Gravil v Carroll, the court answered both the questions in an affirmative, thereby holding the Rugby Club vicariously liable for the injury to the claimant. The reasoning offered by the court was that the critical factor in such cases is related to the nature of the employment and the close connection between the employment and the tort committed. If there is a close connection, then the second question which is related to the fairness of holding the employer liable can be answered in that context only. The underlying principle for the court’s decision was that both players and their clubs are required to take reasonable steps to minimise the risk of injury causing foul play and the failure to do so leads to the liability as well. Mention may also be made of recent Supreme Court judgment in Mohamud, in which the court held that the principle of ‘close connection’ test is applied in reference to two questions: first, what are the field of activities entrusted to the employee; and second, whether there is sufficient connection between the or employment and wrongful conduct.

The same principle as was laid down in Gravil v Carroll, is also applicable in the present scenario. The facts of the scenario show that the injury to Ashley Paul was caused by Shane Roonard during the course of a professional football match between Burnston Rovers and Edge Hall Town, for which Ashley Paul played. The injury was serious and ended the career of Ashley Paul. At the time, the first defendant, Shane Roonard was playing for the second defendant, Burnston Rovers. There was a contract of employment between Shane Roonard and Burnston Rovers, which had a clause stating: ‘Burnston players must not commit acts of violence on the football pitch.’ Despite this clause, Roonard had been suspended from playing for Burnston on two previous occasions as a result of reckless tackles. This indicates that the club was aware of the violent behaviour of Shane Roonard and despite this, they allowed him to continue playing for them and did not impose additional sanctions other than those imposed by the Football Association in the form of three match suspensions and substantial fines.

Indeed, the important issue for deciding the matter against the employer in such cases, as indicated by Gravil v Carroll, is that of the employment relationship between the employer and the tortfeasor employee. In sports, participants may fall into three categories: amateurs, self-employed sports persons, and employed professionals. Employed professionals are subject to the Employment Rights Act 1996 and the Employment Protection (Consolidation) Act 1978. The contract of employment is what determines the relationship of employed professionals with their employers. Section 230 of the Employment Rights Act 1996 provides that an employee is a person who works under a contract of employment. Therefore, as per this definition, Shane Roonard is an employee of Burnston Rovers.

To conclude this point, it may be summarised that as the relationship of employment is established, it can be argued that Burnston Rovers is vicariously liable for the injury caused to Paul because of the close connection between the act of Shane Roonard and the employment as a football player with the Burnston Rovers. Moreover, it is fair and just to hold the club vicariously liable for this injury as the club is also under the duty to ensure minimising of risks by taking reasonable steps in that direction, which the club failed to do. The basis for determination of fairness of the application of vicarious liability stems from the nature of the tort and its close connection with the employment.

Arguments for the Respondents (Shane Roonard and Burnston Rovers FC )
Arguments for Burnston Rovers FC

The argument by Burnston Rovers is based on two grounds: The assault was not carried out during the course of employment; and It is not fair and just to impose vicarious liability on the club. With respect to the first point, it can be argued that for vicarious liability of the employer to arise, the employer must have authorised the wrongful act of the employee or when the employee performs a lawful and authorised act in an unlawful and unauthorised manner. Neither of these points are satisfied in the present scenario. Burnston Rovers did not authorise

the act of violence by Shane Roonard. In fact, the contract of employment between it and Shane Roonard specifically contains the clause that clause stating: ‘Burnston players must not commit acts of violence on the football pitch.’ Therefore, the act of Shane Roonard in kicking out Ashley Paul was an unauthorised act and was not carried during the course of the employment. Thus, the act of the player is not one for which Burnston Rovers can be held liable.

Another issue that may arise here is the close connection test, on the basis of which the claimant may argue for the vicarious liability of Burnston Rovers; but it can be counter-argued that the close connection test is not applicable to this case because the problem with the application of the close connection test the application of ‘value judgement’, which is not applicable in each case of employment.

A case that demonstrates how close connection test does not necessarily apply in each case is that of Allen v Chief Constable of Hampshire Constabulary, in which the Court of Appeal held that the close connection test would not apply in a case involving personal vendetta between the claimant and the tortfeasor and in such as case, vicarious liability will not arise for the employer.

Therefore, where there is a personal vendetta or a personal issue between the claimant and the tortfeasor employee, the close connection test will not apply in such cases. In the present case, Shane Roonard kicked out at Ashley Paul because the latter verbally abused him. Thus, there was an altercation between the two players in which one player abused the other and the other player kicked out as a result. This is not an act authorised by Burnston Rovers. In fact, this is an act expressly prohibited by the employer in the employment contract. A case that will provide more strength to this line of argument is that of Deatons Pty Limited v Flew, in which case, the barmaid of a hotel assaulted a customer by throwing beer in his face. The owner of the hotel was held not vicariously liable for this unprovoked assault as the barmaid did not throw the beer in the course of maintaining discipline or restoring order to the hotel bar and her attack was purely personal and unprovoked by the customer. The same principle of law can be applied in this case as well because the assault by Shane Roonard was a response to the provocation by Ashley Paul and was not in the course of playing for the club. At the time of the assault the players were involved in a verbal altercation. Therefore, the act of Shane Roonard in kicking out at Ashley Paul was an act of personal retaliation and not doing something on behalf of the club.

To conclude this point, it may be summarised that the club is not vicariously liable for the act of Shane Roonard because this act was not caused during the course of his employment, but was a result of an altercation between the two players in which Shane Roonard kicked out as an act of personal retaliation. Therefore, vicarious liability is not established in the case.

Arguments for Shane Roonard
Provocation

Shane Roonard can raise the argument that he was provoked by Ashley Paul who abused him during the game and in the heat of the exchange he reacted by kicking out. This was not a premeditated act on the part of Shane Roonard. In the case of Ashmore v Rock Steady Security, a doorman assaulted a customer after being verbally abused by the customer, and in the ensuing case, the defence of provocation was taken and was upheld by the court. This led the court to reduce the claimant’s award of damages by 20%. In other words, the court decided that the claimant had to share the blame for the act by 20%.

The present case has similar facts, with the difference that the assault took place on a playing field. However, like Ashmore case, in this scenario also the claimant verbally abused Shane Roonard, leading the latter to kick out in a fit of anger. This was not a premeditated attack on Ashley Paul, but a response to the provocation offered by Ashley Paul. Therefore, in this case, provocation may be used as a partial defence to the tort of assault and can be used to bring down the damages or compensation to be given to the claimant. Another recent Scot case is also relevant here and in this case it was held that provocation led to the reduction of damages to the claimant. In the same case it was held that in order for provocation to be applicable as defence, the respondent will have to prove that the claimant said or did something that amounted to a wrongful act and that this behaviour was provocative and had an effect on the mind of the respondent.

To conclude this point, it may be summarised on behalf of Shane Roonard that he was provoked into the kicking event and therefore, the claimant is also partially to be blamed for the event and the ensuing injury to himself. This defence is partial in nature, but it will have the effect of decreasing the liability for Shane Roonard.

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Table of Cases

  • Allen v Chief Constable of Hampshire Constabulary [2013] EWCA Civ 967
  • Ashmore v Rock Steady Security [2006] SLT 207
  • Bazley v Curry (1999) 174 DLR (4th) 45
  • Cox v Ministry of Justice [2016] UKSC 10
  • Deatons Pty Limited v Flew (1949) 79 CLR 370
  • Dubai Aluminium v Salaam & Others [2002] UKHL 48
  • Gravil v Carroll and another [2008] EWCA Civ 689
  • JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938
  • Limpus v London General Omnibus (1862) 1 H&C 526
  • Lister v Hesley Hall Ltd, [2001] UKHL 22
  • Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church (2010) EWCA Civ 256
  • Mattis v Pollock [2003] 1 WLR 2158
  • McLaughlin v Morrison & Anr [2014] SLT 862
  • Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11
  • Rose v Plenty, [1976] 1 WLR 141
  • T v North Yorkshire CC [1998] EWCA Civ 1208
  • Bibliography
    Books

  • Bermingham V and Brennan C, Tort Law Directions (OUP, 2016). Gardiner S, O'Leary J, Welch R, Boyes S, Naidoo U, Sports Law (Oxon: Routledge 2012). Howarth D et al, Hepple and Matthews' Tort Law: Cases and Materials (Bloomsbury Publishing, 2016) Lunney M and Oliphant K, Tort Law: Text and Materials (Oxford: Oxford University Press 2013).
  • Journals

  • James M and McArdle D, ‘Player violence or violent players? Vicarious liability for sports participants’ (2004) 12(3) Tort Law Review 131.
  • Neild D, ‘Vicarious Liability And The Employment Rationale’ (2013) 44 VUWLR 713.
  • Others

  • Williams K, ‘Vicarious liability of the Roman Catholic Church for sexual abuse by a priest’, accessed

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