The High Court has provided a further example of the widened principles of vicarious liability catching a variety of organisations in circumstances differing from the traditional employee/employer relationship. In this instance, liability was established despite the tortfeasor not being paid by the football club, essentially acting as a volunteer when scouting for youth players.
In addition, the trip where the abuse had taken place was not organised by the football club, with a large proportion of the cost being paid by the tortfeasor himself.
As with all decisions on vicarious liability at the moment, the overall future direction for this area will be heavily dependent on the outstanding Supreme Court appeals in Barclays Bank and WM Morrisons.
The Claimant alleged he was sexually abused by a convicted sex offender ("the tortfeasor") during a youth football trip to New Zealand in 1987. The Claimant pursued a claim for damages against the Defendant football club on the basis that it was vicariously liable for the actions of the tortfeasor, who had died in 2005.
The Defendant denied liability.
Whilst the tortfeasor died in 2005, and was not convicted of any criminal offences against the Claimant, the Court found the Claimant to be a "transparently honest and sincere witness". His account was accepted "without qualification or reservation."
The Court concluded the tortfeasor sexually abused the Claimant and that the Defendant was vicariously liable for his actions. The Claimant was awarded £17,000 in damages, as his injuries fell within Category 4(A)(c) of the Judicial College Guidelines.
In reaching this conclusion, the Court was asked to consider various issues.
Mr Justice Griffiths considered the two stage test for establishing vicarious liability as set out in Cox and Mohamud:
1. Was the relationship between the Defendant and the tortfeasor such that the Defendants can be liable for his assault of the Claimant?
The Court heard from various witnesses regarding the nature of the relationship between the Defendant and tortfeasor. Ultimately, Mr Justice Griffiths found that the relationship was capable of giving rise to a vicarious liability.
Whilst it was noted that the tortfeasor was an unpaid volunteer, the financial position of the Defendant at the relevant times was precarious, and this meant various non-playing staff were in the same position.
The club was unable to run an effective youth programme without the tortfeasor, and he was "very much doing the work of the Club." The Defendant gave him credibility with young footballers by "lavishing tickets and access on him."
In perhaps the most damning element of the judgment, the Court found "the football and the abuse were symbiotic, and all the football was directed to recruitment" for the Defendant.
2. Was there a close connection between the assault of the Claimant and the relationship between the tortfeasor and the Defendant?
The Court heard evidence from various individuals including the Claimant, an apprentice, and parents who had sent their sons on the trip. One of the parents was the manager of the first team at the Defendant.
The Claimant himself considered the trip to New Zealand "a chance to further [his] prospects of a career" playing for the Defendant. One of the parents found the manager's son attending the trip as evidence that this made "the trip legitimate and reassured [him] that the trip was endorsed" by the Defendant.
In addition, the manager "personally addressed the meeting to reassure" parents concerned about the trip. He further accepted that "it was more likely that people took advice from what [he] said".
Mr Justice Griffiths found that the relationship between the tortfeasor and the Defendant was capable of establishing a vicarious liability. "[The tortfeasor] was as dependent on Blackpool's favour and on his integration into Blackpool FC as an employee would have been: he was working for them, and they could have fired him at any time."
The tortfeasor "used and misused" this position to create the circumstances in which he was able to abuse the Claimant.
The Court concluded that it was equitable to allow the action to proceed by disapplying limitation per section 33 of the Limitation Act. Mr Justice Griffiths noted that the "cogency and abundance of the evidence," amongst other issues, meant that "no real risk of substantial prejudice [was] caused by the delay in the defendant receiving notice of the claimant's claim."
The Defendant had argued that the likelihood of a 'relatively modest' damages award meant that disapplying the limitation period was disproportionate. This argument was dismissed. The Court found precedent relied upon did not provide defendants "a trump card [where] the money value of a claim is relatively small."
What can we learn?
- As we previously indicated in our analysis of the Court of Appeal decision in Barclays Bank; that decision has increased exposure for insurers in respect of 'non-traditional' historic abuse defendants such as sports clubs. It would not be surprising to see further reporting of decisions involving similar issues. As noted above, we await the outcome of the appeal hearing in Barclays Bank the Supreme Court with great interest.
- When considering the extent of the Claimant's injury, the Court was critical of the actions of the Defendant before and during the trial, noting that "they conceded nothing at all... and made no effort to sympathise or to reach out in ways that might have mitigated the difficulties". The Claimant was unaware that he would not be cross examined on the basis that he was not abused until the Court addressed this. Whilst these actions did not aggravate the level of damages awarded, defendants and their representative should be aware of the need for sensitivity in dealing with claimants.
- Mr Justice Griffiths was also keen to emphasise that a 'modest' claim value does not provide defendants with an argument against disapplying the limitation period. The money value of the claim is not one of the criteria identified in section 33(a) to (f) of the Limitation Act. Furthermore, the Court considered the basis on which the claim was brought, which was not solely for money. The Claimant had emphasised that he hoped his experience would help the Defendant learn from it's historical failings.