In 1987 the claimant was aged 13 and a member of a youth football team run by R, who at that time acted as a volunteer scout for the defendant football club and was a convicted sex offender. R also ran a sports clothing shop, and was the sole adult and in charge of the youth team’s tour of New Zealand when he sexually assaulted the claimant. The evidence showed that R had previously organised tours of his youth team, that as a scout he would try to find promising youngsters below the minimum schoolboy signing age of 14, coach them and encourage them to sign for the defendant. Furthermore, the particular tour of New Zealand had been paid for by R, apart from a contribution of £500 by the defendant, and included a trip to Thailand so that R could purchase clothing for later sale in order to recoup some of the considerable expense he incurred in paying for the tour. R died in 2005. Following publicity surrounding recent high-profile sex abuse cases and because his mental health had been seriously affected, the claimant brought proceedings against the defendant for damages for injury and loss suffered as a result of R’s abuse on the basis of the defendant’s vicarious liability for the acts of R. The judge found that R was appreciated and welcomed by the defendant because he had introduced players successfully to the club, R’s youth team was known to provide future players for the club, and that he had sexually abused the claimant. The judge held the defendant was vicariously liable, and he also exercised his discretion to disapply the primary limitation period.
On the defendant’s appeal in respect of, inter alia, the issue of vicarious liability—
Held, appeal allowed. The conventional test for the imposition of vicarious liability involved the synthesis of two stages: first, whether the relationship between the tortfeasor and the defendant was capable of giving rise to such liability, and secondly, examination of the relationship that linked the tortfeasor and the defendant and the tortious act or omission of the defendant. The court’s task was to adopt the common law approach of comparison with previous decided cases, taking incremental steps where they might be appropriate. The evidence in the present case did not justify a finding that the relationship between the defendant and R could properly be treated as akin to employment. While what R did as a scout conferred important benefits on the defendant’s business and he was welcomed by it in recognition of his having produced good players for it in the past, none of the normal incidents of a relationship of employment were otherwise present, nor was there evidence of control or direction of what he should do. R had acted with a degree of independence and lack of control so that the requirements of the first stage were not satisfied. Furthermore, it could not be said that the trip abroad was as close to an official one as made no difference. The tour had little to do with the defendant apart from its small financial contribution and the hope that some boys would form an allegiance to the defendant on their return. That R took the opportunity his role afforded him to groom and ultimately abuse boys did not support the suggestion that the trip was something that occurred in the normal course of his work for the defendant. The facts did not in any way suggest the defendant required R to organise and lead the tour, or that it had assumed responsibility for the boys going on the trip or entrusted them to R’s care. There was, therefore, a lack of the requisite close connection linking the defendant and R and the sexual abuse he inflicted on the claimant in New Zealand, so that there was no basis to support a finding of vicarious liability on the defendant (paras 56, 104, 122–147).
Michael Kent QC and Nicholas Fewtrell (instructed by Keoghs LLP, Bolton) for the defendant club.
James Counsell QC and Benjamin Bradley (instructed by Bolt Burdon Kemp) for the claimant.