Nicholas Fewtrell acted for the successful Appellant in Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352

Nicholas Fewtrell, led by Michael Kent QC acted for the successful Appellant, instructed by Christopher Wilson, Keoghs LLP.

Judgment handed down on 9^th September 2021 by the Court of Appeal provides useful clarity as to the limits of the doctrine of vicarious liability imposing no-fault liability on a defendant (D) for the torts of another (T). The claimant, then aged 13, had been subjected to a sexual assault by one Frank Roper on a junior football trip to New Zealand organised by Roper. It was sought to make Blackpool FC, for which Roper had performed “scouting” activities introducing promising young players to the Club, liable for the assault. At first instance Griffiths J accepted the argument that the two-stage test making it fair, just and reasonable for vicarious liability to be imposed was satisfied (stage 1 being the need for a relationship between D and T which, if not one of employer and employee, was at least one “akin to employment”, stage 2 requiring the tort to have been committed in circumstances closely connected with the functions or duties arising from that relationship). Applying relatively recent Supreme Court case law (including two important decisions post-dating his judgment) the Court of Appeal reversed Griffiths J and held that the Club was not liable.

This was a case of historic sexual abuse by a junior football coach who died some years ago. In such cases as this there is an understandable search for a solvent or insured entity to sue but this decision confirms that the “akin to employment” extension beyond conventional employer/employee relationships has its limits and in particular it is not enough that T performs some useful function for D (which will be true of an independent contractor for whose torts it is now well established D is not liable); nor is it enough that the relationship gave T the opportunity to commit the torts. There must at the very least be some measure of control that D is able to exert over the activities of T to make it fair, just and reasonable to impose liability for his torts. Stuart-Smith LJ (with which the other members of the Court agreed) said at [101] that the cases in which liability is imposed on D:

“have as their hallmarks features of control, enterprise risk and integration of the tortfeasor into the business. Where the relationship is such that the ‘employer’ is not even in a position to direct what the tortfeasor shall do, as Lord Reed held at [21] of Cox’s case, ‘the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.’

At [127] he said “Leaving on one side the fact that he had a completely free hand about how he did his scouting, there is no evidence of any control or direction of what he should do.”

Stuart-Smith LJ also noted at [132] that “Blackpool FC was under no relevant statutory duty to boys who wanted to play football and did not ‘place’ the boys with Mr Roper in any meaningful sense of the word. The opposite was the case: Mr Roper scouted for boys who had no previous connection with Blackpool FC at all unless and until he introduced them to Blackpool.”

A copy of the judgment can be found here.