The law on vicarious liability is currently in a state of flux, particularly in cases involving sexual abuse. In the latest development, the Court of Appeal in Blackpool Football Club v DSN  EWCA Civ 1352 upheld the football club’s appeal on the basis that it was not responsible for the abuse carried out by someone who was not its employee and over whom it had limited control. The decision is a helpful further guide to the approach likely to be taken by the courts in those cases which involve allegations of vicarious liability in relationships other than employment.
What are the practical implications of this case?
The decision is a reminder to practitioners that there are limits to the applicability of the doctrine of vicarious liability; although the courts are sympathetic to the plight of the victims of abusers, not every case will give rise to an action against a solvent (or insured) entity.
What was the background?
The claim arose out of the activities of a football talent scout, Frank Roper, who died in 2005. Roper ran youth football teams and a sports clothing shop in Blackpool, and also acted as an unpaid scout for Blackpool FC. In June 1987, while on a footballing tour for young boys to New Zealand which also visited Thailand on the way home, the Claimant, then aged 13, was sexually abused by Roper, who was in charge of the tour and who was the only adult leading the trip. Roper was at that time a convicted sex offender, having been convicted for indecent assaults on males in 1960, 1961, 1965 and 1984. He was the organiser of the tour, and the judge found at first instance that only one or two boys from the Blackpool FC School of Excellence went on it; the others were from a mixture of youth football clubs. Subject to a financial contribution of £500 from Blackpool FC, Roper carried the entire cost of the tour, estimated to be ‘in the region of £25,000 or rather more’. There was no evidence that Blackpool FC had any involvement in the planning, running, administration or financing of the trip other than the contribution of £500; it did not endorse or adopt the tour. It appears that the diversion to Thailand on the way back to the UK was designed to enable Roper to purchase a containerload of counterfeit sportswear, which he then proceeded to sell in his shop in Blackpool, thereby more than recouping the cost of the tour.
The Claimant issued proceedings against the club on 19th January 2018, over thirty years after the events which founded the claim. After a trial lasting four days in January 2020 the trial Judge, Griffiths J, held that the applicable primary limitation period should be disapplied under s.33 of the Limitation Act 1980 and the action should be permitted to proceed; and he held that the club was vicariously liable for the acts of Mr Roper when he abused the Claimant.
The club appealed these findings to the Court of Appeal.
What did the court decide?
Stuart-Smith LJ recounted the history of the development of the law on vicarious liability at paragraphs 50 to 104 of the judgment; and it is a full yet concise summary of the evolution of the principles of the law in an area which has at times been both confusing and confused. He concluded:
“…To my mind, there is a strand running through the cases…which suggests that what one should look for is not merely a beneficial involvement with (or for) the “employer’s” enterprise but a real degree of integration of the primary tortfeasor into the employer’s business or relevant activity. This is not capable of hard-edged definition in advance; but it may in appropriate cases provide an additional marker when seeking to distinguish between relationships that are properly to be regarded as “akin to employment” and those that are not…”
Having considered the authorities, Stuart-Smith LJ applied the principles to the facts of the case at hand. In doing so he emphasised the need for ‘an intense and fact sensitive analysis of the details of the relationship’ between the club and Roper, and set out the factors indicating and contra-indicating a relationship between them akin to employment in relation to the tour. He concluded that no such relationship existed; Roper had organised and, largely, paid for the tour, for his own ends, and the club was right to submit that an absence of even a vestigial degree of control over Roper indicated that it should not be vicariously liable for his actions during the course of it. The reality, so the Court found, was that the trip was Roper’s trip ‘in every sense’, and that the club was therefore not vicariously liable for the abuse which had taken place during the course of it.
The Court went on to consider the decision at first instance in relation to the disapplication of the limitation period under s.33 of the Limitation Act 1980, and dismissed the appeal in this regard, holding that the judge had correctly undertaken the requisite balancing exercise. The judgment contains a useful summary of the relevant principles, to be found at paragraphs 149 to 159.
- Court: Court of Appeal
- Judges: Macur, Stuart-Smith LLJ and Sir Stephen Richards
- Date of judgment: 9/9/2021
This article was first published by Lexis Nexis, September 2021