Vicarious liability: More restrictive approach leads to successful appeal by defendant

The Court of Appeal has recently overturned the first instance decision in Blackpool FC v DSN. The appeal court found that there was no relationship akin to employment between the football club and perpetrator, nor did the club have any control over him.

Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352

The Supreme Court decisions in Barclays and Morrisons in 2020 restated a restrictive approach to the application of the two-stage test for establishing vicarious liability, responding to concerns about “the potential for unprincipled expansion” of vicarious liability.

Prior to these decisions, the High Court had held in DSN v Blackpool FC, that a football club was vicariously liable for the acts of an unpaid scout. The scout, Mr Roper, had sexually abused the Claimant whilst on a football tour organised by him.

At that time, the decision highlighted the increased exposure of insurers for 'non-traditional' historic abuse defendants such as sports clubs. However, after consideration of the aforementioned Supreme Court decisions and existing principle, the Court of Appeal overturned the first instance decision on the issue of vicarious liability. The appeal court found that there was no relationship akin to employment, nor did the Defendant have any control over the perpetrator.

Background

The Claimant alleged that he was sexually abused whilst on a footballing tour when aged 13.  The perpetrator, Mr Roper, oversaw the trip as the only adult leading it, and had funded a significant element of the trip himself. Roper acted as an unpaid scout for the Defendant, in that he would try and find talented players and send them to the Defendant.

The Claimant issued proceedings over 30 years after the acts took place. Roper died in 2005 and the Claimant’s account of what had happened was accepted.

At first instance the trial judge held that the limitation period should be disapplied and the Claimant could proceed with his claim per the discretion in s33 Limitation Act 1980.

Mr Justice Griffiths found that the Defendant was vicariously liable for Mr Roper’s acts when he abused the Claimant and awarded the Claimant compensation.

The Defendant appealed the trial judge’s findings on limitation and vicarious liability.

On the issue of limitation, the Court of Appeal found that the trial judge had been entitled to conclude there was no real risk of substantial or significant prejudice to the Defendant in the delay of bringing the claim. There was ample material for the judge to reasonably exercise his discretion in favour of disapplying the limitation period

Appeal

On the issue of vicarious liability, the Defendant appealed submitting that:

• The judge was wrong on the facts and in law to hold that Roper was at any material time in a relationship with the Defendant that was capable of imposing vicarious liability on the Defendant for his torts (Stage 1 of the two-stage test)
• The judge was wrong in law and in fact to hold that there was a sufficient connection between the assault on the Claimant and any relationship between Roper and the Defendant (Stage 2 of the two-stage test).

As noted above, Mr Justice Griffiths “did not have the corrective guidance of Barclays' case, primarily in relation to stage 1, and Morrison No 2, primarily in relation to stage 2,” when handing down the first instance decision.

In respect of Stage 1, the Defendant submitted that Mr Justice Griffiths failed to address the actual relationship between Roper and the Defendant, with no relevant control over him. He was effectively a “free agent”. Whilst the club was happy to receive his recommendations, he was under no obligation to make recommendations or to make them exclusively to the Defendant.

In respect of Stage 2, the Defendant submitted that that there was no close connection between the actions of Roper on the tour, and his relationship with the Defendant.  The tour was an independent venture, and not “something that Mr Roper was authorised or required to do as the club's scout or representative.” The characterisation of the tour “as close to an official trip as makes no difference” was wholly incorrect.

Outcome

The Court of Appeal upheld the appeal of the Defendant on the findings of vicarious liability Although Roper’s scouting activities were important to the Defendant, given his previous successful referrals to the club, “none of the normal incidents of a relationship of employment are otherwise present.”  The “free rein and full access to its premises” that Blackpool FC had given Roper, as well as “deference and welcome” was not enough to justify the imposition of vicarious liability.

There was no evidence of any control or direction by the Defendant over what Roper should do. His activity was not exclusively for the benefit of the Defendant. He was actively involved in assisting boys who were trying to get into other football clubs. The Court of Appeal found there “was a complete absence even of a vestigial degree of control”.

The trip was Roper’s venture, organised and paid for by him. Whilst away the group was referred to as “Mr Frank Roper’s Football Tour” or “Frank Roper and his squad of youngsters from Blackpool”. The Court of Appeal found this was significant in making clear that the trip was essentially Roper’s trip in relation to funding and the running of it. Other than a relatively small financial contribution to the overall costs, there was no evidence that the trip was the Defendant’s idea and most of the boys had no existing connection with the Defendant. If the parents, as reasonable observers, considered Roper to be acting as a representative of the Defendant when leading the trip this was not an acceptable test for the imposition of liability.

Ultimately, the Court of Appeal was “unable to identify any statement of principle in the various authorities to which [the Court] referred that supports the submission that there was the requisite close connection linking the relationship between the club and Mr Roper and the sexual abuse he inflicted upon the Claimant while in New Zealand. Those cases where vicarious liability has been imposed in the absence of a relationship of employment are clearly distinguishable on their facts”.

What can we learn?

• This decision reiterates that cases outside of the traditional employee/employer scope require a close examination of the relationship between the tortfeasor and the party identified as defendant. As set out by Lord Justice Stuart-Smith “stages 1 and 2 are not susceptible to a "tick-box" approach; nor do the statements of principle to which I have referred provide a precise definition that can simply be applied so as to give a ready answer when the question of vicarious liability arises beyond the safe confines of an employer/employee relationship.”  To that end, a comparison with existing precedent is necessary, with the Court of Appeal specifically drawing equivalents between this case and existing decisions.
• With reference to Barclays, the Court of Appeal noted that neither Mr Roper here nor the doctor in Barclays were under any obligation to accept work from the respective defendants.  Considering Armes, the “controlling, monitoring, supervision and approval of the foster parents was a feature that has no equivalent” in this case.
• Referring to those cases where vicarious liability had been imposed in the absence of a relationship of employment (such as Christian Brothers and BXB) this claim was distinguishable in the absence “of the all-enveloping nature of the relationship” between perpetrator and defendant identified in those cases. Within the Christian Brothers decision, there were “ties that bound the brothers to the institute… stronger than those imposed by a contract of employment”. No such ties were imposed or could be implied in this case. Similarly, in BXB, “the ties and obligations owed by members of the Jehovah's Witnesses were stronger than those to be found in a conventional employer/employee relationship.”
• As Lord Justice Stuart-Smith set out, “More is required, both at stage 1 and stage 2 [of the vicarious liability test] than that the "employer" has engaged the tortfeasor to carry out work which gave them the opportunity to commit the tortious acts in question.”  The creation of risk inherent to the employer’s business, combined with a measure of control over the tortfeasor, “will frequently provide the touchstone for the synthesis of stage 1 and stage 2.” 
• This decision serves as a clear declaration of the retrenchment in the doctrine of vicarious liability since Barclays and Morrisons “applied something of a brake on the more expansionist approaches.”  Having seen these approaches in action in the past few years, both insurers and organisations will welcome this clarification, but should continue to be mindful that a precise definition of vicarious liability outside the traditional employee/employer relationship does not exist. Close examination of these relationships will continue to be necessary, particularly where it is not clear whether the tortfeasor was carrying out independent business of their own.