Vicarious liability: applying the brakes?

During the last 20 years, claims arising from non-recent sexual abuse have generated numerous judicial decisions. These claims often explore the concepts of limitation and vicarious liability and – on occasion – have almost redefined these concepts. The latest case is Blackpool FC Ltd v DSN [2021] EWCA Civ 1352, in which Lord Justice Stuart-Smith reviewed the authorities afresh.

DSN was 13 years old in 1987 when – along with a group of young teenage boys – he went on a footballing tour of New Zealand under the supervision of Frank Roper.  He was sexually abused by Frank Roper, a ‘terrifying experience with lasting consequences’ according to the judge at first instance.  Roper was not employed by Blackpool FC but he was closely associated with it: running an unofficial feeder club and directing promising teenagers towards Blackpool FC.  This was important to Blackpool FC whose dire financial situation was dependent on attracting and later selling valuable young players.

Frank Roper died in 2005. DSN brought a claim for compensation against Blackpool FC in 2018, more than 30 years after the abuse and more than 22 years after primary limitation had expired. 

  • Griffiths J handed down his judgment in March 2020 (see here).  The judge found that Roper had abused DSN as alleged and exercised his discretion under section 33 of the Limitation Act 1980 to allow the claim to proceed. He found that Blackpool FC was vicariously liable for the actions of Frank Roper and awarded £17,000 by way of general damages (inclusive of aggravated damages). 
  • Blackpool FC was allowed to appeal on four grounds: two on limitation, and two on vicarious liability.  The Court of Appeal heard the appeal in July 2021 and last week handed its judgment down.
  • Stuart-Smith LJ (with whom the other judges agreed) dismissed the two appeal grounds which related to limitation.  He found that the judge at first instance had identified and applied the correct principles, asked the right questions, and formed an assessment and conducted the requisite balancing exercise.  The judge had been entitled to conclude that it was equitable to allow the claim to proceed.  Stuart-Smith LJ warned against a tendency to focus exclusively on the potential prejudice to Blackpool FC.  The risk of significant prejudice to either party is to be weighed in the balance; it cannot be assessed on its own.
  • Stuart-Smith LJ allowed the appeal to succeed with regard to the two grounds on vicarious liability.  He carried out an extensive review of the authorities over the past 20 years, focussing on the better-known cases since 2012 (English Province, Christian Brothers, Cox, Armes, Mohamud, Barclays, Morrison 2 and BXB) but also on the earlier Canadian cases and the 2005 case of Viasystems (see here). He looked at stage 1 (is the relationship between tort feaser and defendant ‘akin to employment’?) and stage 2 (is the tort closely connected to that relationship?) and how they have been articulated.  He paid close attention to the presence (or absence) of control and quoted Lord Phillips in Christian Brothers:

“there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act.  It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned task.”

  • Applying the above principles, he agreed that Roper’s actions were indeed integral to Blackpool FC’s business.  They also gave him access to boys and the opportunity to abuse them.  But this was not enough to support a finding of vicarious liability.  What mattered was the nature of the relationship between Roper and Blackpool FC.  Blackpool FC did not exert control over Roper’s activities (scouting young players, and arranging the New Zealand trip) and Roper had no obligation to accept any work from the club.  This meant the relationship was not ‘akin to employment’.  Furthermore the club did not require Roper to organise and lead the New Zealand trip, neither did it confer authority on Roper in relation to the trip.  As such, there was no ‘close connection’. 

It is often said that vicarious liability is ‘on the move’.  It now seems that courts are ‘applying the brakes’ and slowing its growth. 

Written by Geneviève Rich at BLM

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