24 September 2021

The Court of Appeal have recently considered the doctrine of vicarious liability in the case of Blackpool Football Club v DSN. The claimant, who was then aged 13, had been subjected to a sexual assault by a former football scout, Frank Roper, on a football trip to New Zealand organised by Roper. The claimant sought to find Blackpool Football Club, for which Roper had performed “scouting” activities introducing young players to the Club, liable for his assaults. Mr Roper died several years prior to the proceedings.

Mr Roper was not an employee of the football club; he was a volunteer. In light of this, in order to succeed in proving that the football club were vicariously liable, the claimant had to prove that it was fair, just and reasonable for vicarious liability to be imposed. In doing so, the claimant required to meet a two-stage test, notably that 1) the relationship was one “akin to employment” and 2) that the tort was committed in circumstances closely connected with the functions or duties arising from that relationship.

The claimant succeeded at first instance, and the decision was subsequently appealed by Blackpool Football Club.

 The Court of Appeal, in considering stage 1 of the test, stated:

 “In the present case, 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 as that phrase has been developed in the authorities. 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 1 are not satisfied in the present case”.

Turning to stage 2, it was noted that the foreign trip was organised by Mr Roper alone and it was not endorsed by the Football Club. It was found that Blackpool had no involvement at all, apart from providing around 2% of the funding. No evidence was found that the trip was in any sense Blackpool FC’s idea, or that they asked Mr Roper to organise and finance it for them, or that they had any hand in choosing who went on the trip. The absence of control exercised by Blackpool over Roper appears to have been critical to the outcome as the Court of Appeal was not satisfied that his relationship with the Club was one of employment, or akin to employment. Instead, he fell to be considered as an independent contractor.

Accordingly, the decision was overturned by the Court of Appeal.

Whilst the decision does not seek to change the law in any respect, it provides useful clarity as to the approach that the Courts may take on the outer limits of the doctrine of vicarious liability.

For more information, please contact:

Jennifer Mackenzie, Associate: jmk@bto.co.uk / 0141 221 8012