Court of Appeal reviews vicarious liability in sexual abuse claims
The claim had succeeded in the High Court, and Blackpool FC appealed 2 issues: limitation and vicarious liability.
On Thursday 9 September, the Court of Appeal gave its keenly awaited judgment in DSN v Blackpool Football Club  EWCA Civ 1352
This claim was brought by a victim of child sexual abuse perpetrated by Frank Roper, a Blackpool FC youth scout, on a youth football trip to New Zealand and Thailand in 1987. The claim had succeeded in the High Court, and Blackpool FC appealed 2 issues: limitation and vicarious liability.
The limitation issue can be dealt with briefly. The Court of Appeal felt the High Court Judge analysed the issue correctly, and his decision to allow this late claim to proceed was within the bounds of reasonableness. It was not “outside the generous ambit of a proper exercise of the judge’s discretion” to conclude that the lost evidence — the testimony of Frank Roper (who died in 2005), and documents relating to the trip — would have made little difference.
It is on the issue of vicarious liability where this judgment has greater significance.
Vicarious liability has been a very active issue in recent years. The Court of Appeal focused on six recent Supreme Court decisions. While not looking to challenge these decisions in any way, it tried to draw the strands of the decisions together. The length of this judgment, 61 pages, many of which are spent analysing these decisions, shows how complex this area of law has become.
The test for vicarious liability has two stages:
- Is the relationship between the perpetrator (Frank Roper) and the defendant ( Blackpool FC) one which might lead to vicarious liability?
- Is there sufficient proximity between the role the perpetrator had (scout) and the wrongful act (sexual abuse on foreign trip) to justify the imposition of vicarious liability on the defendant?
This case focused more on stage 1 than stage 2. Stage 1 is straightforward if the perpetrator is employed by the defendant. However, Roper was not employed by Blackpool FC. He volunteered his services as a scout. He had his own sports equipment business.
The stage 1 analysis was a detailed factual inquiry. The High Court judge concluded it was satisfied. Key considerations for the judge were how important scouting young talent was for Blackpool FC, the extensive access to the club’s premises and facilities that Blackpool FC granted to Roper, and the extent to which Roper’s activities were seen to be on behalf of Blackpool FC.
The Court of Appeal took a very different view. It reviewed the various factors that had been relevant to a stage 1 analysis in recent Supreme Court cases and concluded that the most important two factors were “the combination of the creation of enterprise risk inherent in the [defendant’s] business, combined with the measure of control [of the perpetrator by the defendant]”. It then focused on these two factors, and this is where this claim failed.
The Court of Appeal concluded that the connection between Blackpool FC and the foreign trip was too remote for the risks created by an adult taking unaccompanied children on a foreign trip to be regarded as risks inherent in the club’s business. The trip was Roper’s idea. The foreign trip was organised, and almost entirely funded, by Roper alone. It was not officially endorsed by the club, was not badged as a club trip, and only a minority of young players on the trip had any connection with the club. Furthermore, the purpose of the Thailand leg of the trip was for Roper to buy sports equipment for his business. No football was played in Thailand.
The Court of Appeal also concluded that none of the factors which had influenced the judge on stage 1 (importance of scouting for the football club, the access granted to Roper, and Roper’s apparent representation of Blackpool FC) was evidence of any control of Roper by the club. In truth, the club had very little control. Roper was a volunteer and could stop if he chose to. He had independent sources of income. The club could not tell Roper how to go about his scouting of young players and did not attempt to do so.
This is a helpful case, particularly in relation to stage 1 of the vicarious liability test. It does not attempt to change the law, but it does analyse recent case law in a way not attempted in other judgments. And for all the examination of legal reasoning, it also emphasises that both stages 1 and 2 of the vicarious liability test remain very fact sensitive. This very detailed judgment highlights the importance of gathering as much factual information as possible. Finally, in an area in which the scope of the applicable law was becoming ever wider, it is a decision that confirms the helpful containing impact of the Supreme Court judgment in Barclays Bank plc v Various Claimants  UKSC 13 (a judgment that was not available to the High Court at the time it reached its decision). Like the relationship between the bank and the doctor in the Barclays case, the relationship between Blackpool FC and Roper was not akin to employment. Indeed, the Court of Appeal held it was, using Lady Hale’s description in Barclays, a ‘clear’ case of a perpetrator who was carrying out his own independent business.