VAR (Vicarious Appeal Ruling) goes in favour of the defence

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21 September, 2021

Kella Bowers
Partner and Head Social Care

This article explores the recent case of Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352 which in which the claimant sought to expand further the way in which a defendant can be found to be vicariously liable for the actions of non employees.

The claimant brought an action in the High Court against the defendant for personal injury arising from an allegation of sexual abuse/assault. This was committed by Mr Frank Roper whilst the claimant was away on a football tour to New Zealand in June 1987.

The claimant alleged that Blackpool FC were vicariously liable for the actions of Mr Roper, during this trip. Mr Roper ran a junior football team from which players had previously been taken on by Blackpool FC. The claimant played for Blackpool FC's School of excellence and was invited on the trip that was funded by Mr Roper. It was alleged that the club contributed £500 to the trip but the majority of the money was contributed by Mr Roper. The claimant brought the action against the defendant alleging that they were vicariously liable for the abuse. The defendant's position was that they were not vicariously liable for Mr Roper as he was never an employee of the club. The defendant also raised a limitation defence.

Mr Justice Griffiths in March 2020 disapplied the limitation argument and ordered that the action was to be permitted to proceed pursuant to the discretion conferred by S33 Limitation Act 1980. He further held that the defendants were vicariously liable for Mr Roper's actions during the trip. Mr Justice Griffiths said that the recruitment of the youth players was a vital part of the club's core business and it relied on the volunteers. He also said that the trip in question was a good opportunity for the boys and although it was not an official Blackpool FC trip it was so close to being an official trip that it made no difference. He awarded the claimant £19,000.00 as a result of these findings.

The defendant was granted permission to appeal on four grounds three of which dealt with vicarious liability:

  • Ground 2 - The decision that S11 Limitation Act 1980 should not apply to this action was founded on a perverse conclusion that there was no real possibility of significant prejudice to the defendant from the delay
  • Ground 4 - the judge misdirected himself as to the significance of the evidence said to be consistent in supporting the claimant's case on vicarious liability
  • Ground 7 - the judge was wrong on the facts and in law to hold that Frank 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 part test for vicarious liability)
  • Ground 8 - the judge was wrong in law and in fact to hold that there was a sufficient connection between the claimant's assault and any relationship between Frank Roper and the defendant. (Stage 2 of the part two test for vicarious liability)

Following Lady Hale's Lead Judgment in Various Claimant's v Barclays Bank plc [2020] AC 973, the Court of Appeal examined the nature of the relationship to ascertain whether it was one where Mr Roper was carrying out business on his own account or whether he was in a relationship akin to employment with the club (stage 1). The Court of Appeal found that the relationship between Blackpool FC and Mr Roper was not one that could be treated akin to employment.

When summarising their conclusion, the Court of Appeal said "Although the running of Blackpool FC's business gave rise to the risk of sexual offending against young boys, the relationship between Mr Roper and the defendant fell far short of being akin to employment…".

The Court of Appeal then considered Stage 2 of the test and they disagreed with the High Court that the New Zealand trip was so close to an official Blackpool FC trip that it made no difference. The Court of Appeal said that Blackpool FC had no involvement in the organising of the trip other than to provide 2% of the funding and allowing the use of the social club for meetings about the trip. They went on to say that there was no evidence to suggest that Blackpool FC provided the idea for the trip, this was solely Mr Roper's. This was further evidenced by the last ten days of the trip which was spent in Thailand where no football was played and was primarily for Mr Roper to conduct business. The players were also noted to wear the colours of England and Everton whilst on this trip and not wearing solely or primarily the tangerine colours associated with Blackpool FC. The Court of Appeal stated "On the contrary, while not in any way underestimating the importance of Mr Roper's scouting activities to the club, it is clear that he did so with a degree of independence and lack of control by the club that compels the opposite conclusion. I would therefore hold that the requirements of stage 2 are not satisfied in the present case".

The defendant's appeal on Ground 2 was dismissed on the basis that the Court of Appeal held that the judge was entitled to exercise his discretion and allow the claimant's case to proceed. The Court of Appeal acknowledged that every case must be considered on its own individual facts.

Forbes' Comments

This case follows a spate of claims which have previously looked at expanding the boundaries of the doctrine of vicarious liability. Recent cases have looked at commercial entities and the relationship that they have with the parties independent from the organisation. This judgement is therefore important to many businesses, charities and associations that use volunteers and services external to their core staff.

Lady Hale established in Various Claimants v Barclays Bank plc that we must look at the nature of the relationship between the parties when establishing vicarious liability. This judgment emphasises the importance of reviewing the reality of the evidence available when establishing a relationship rather than dealing with people's views or perception of it. Just because there is a connection between a defendant and an alleged abuser does not automatically lead to the conclusion that there is a relationship akin to employment.

For more information contact Kella Bowers in our Insurance department via email or phone on 01254 222437. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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