Vicarious liability – a restrictive approach
Blackpool Football Club Limited v DSN [09.09.21]
Issues of limitation and vicarious liability in relation to sexual abuse claims have been re-examined by the Court of Appeal in Blackpool Football Club Limited v DSN.
The Court of Appeal upheld a decision on Section 33 of the Limitation Act 1980, where the discretion was exercised in the claimant’s favour. However, the Court of Appeal overturned a finding that the defendant football club was vicariously liable to the claimant.
The claimant alleged he was sexually abused at the age of 13 by Mr Roper, a scout at Blackpool Football Club (Blackpool). The abuse occurred whilst he was on a football tour to New Zealand led by Mr Roper.
Mr Roper, like most other non-playing staff, was unpaid, but the club's dire financial state meant that it relied heavily on volunteers for various functions.
The claimant brought proceedings over thirty years after the alleged abuse. The trial judge disapplied the applicable primary limitation period, allowing the action to proceed under Section 33 of the Limitation Act 1980.
The trial judge held that Mr Roper’s activity was exclusively on the club's behalf and the fact that he was not paid made it all the more striking as the club gave him an "aura" and "the run of the place", which created the trust in the scout that allowed him to abuse the claimant. As such, the club was vicariously liable for the scout’s misuse of his position and the abuse he inflicted.
However, the judge’s decision was given before the landmark Judgments in relation to vicarious liability by the Supreme Court last year in Various Claimants v Wm Morrison Supermarkets plc  and Various Claimants v Barclays Bank plc  (Barclays).
Court of Appeal
The Court of Appeal had little hesitation in dismissing the defendant’s appeal that the trial judge should not have exercised discretion in disapplying the primary limitation period to allow the claim to be brought after 30 years. Highlighting that the law relating to limitation is considerably more settled than the law relating to vicarious liability, the court reiterated the unfettered discretion it has in this respect (albeit the burden still rests on a claimant to establish that the court should exercise discretion).
Referring to the test set out in Cain v Francis  that “in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement” the court held that this was a convenient paraphrase which indicated the balancing act that is required with regard to limitation.
The Court of Appeal accepted that the trial judge had recognised and considered the whole period since the alleged abuse and the reasons for the delay in bringing the action. The judge accepted that there was a clear barrier for the claimant making a disclosure about the abuse, he did not know the abuser had died, and it was impossible to disclose the abuse before he did.
In addition to the claimant’s evidence, there was evidence from five other witnesses who had experienced abuse by Mr Roper in similar circumstances. The judge found their evidence cogent and compelling. In relation to witness evidence about the issue of vicarious liability, it was considered that there was no real risk of substantial prejudice by the delay to the defendant.
Upholding the appeal on vicarious liability, the Court of Appeal referred to the “corrective guidance” of the Supreme Court in Barclays which “heralded a more restrictive approach to imposing vicarious liability in cases where the relationship between the tortfeasor and the person on whom it is said vicarious liability should be imposed is more than merely technically different from those of employer and employees”. In examining the two stage test in terms of whether the relationship between Blackpool and Roper was one which was “akin to employment”, the Appeal Court found that Roper was acting as an unpaid volunteer who had a full-time job running his own sportswear business and there was a complete lack of control or power to direct his scouting activities by Blackpool. There was no contract or evidence of ties imposing obligations on either party and Roper was not obligated to scout for Blackpool.
The Court of Appeal emphasised that it is not sufficient to show that the running of a football club gives rise to a risk that it will attract sexual predators. Rather, it must be shown that this was a relationship between the defendant and the predator which involved a degree of control and direction of the abuser by the defendant that makes it “akin to employment”, as opposed to someone whom the defendant does not even exercise a “vestigial degree of control”.
This judgment provides a helpful summary of the development of the burden of vicarious liability in relationships akin to employment and the restrictive approach that is adopted where there is a lack of control and direction over the alleged abuser by the defendant.
Related item: Personal Injury Brief: latest decisions June 2020