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vicarious liability for physical and sexual abuse claims: what does the future hold for charities, social and sports clubs?

31 May 2017

Sadly the last 12 months have brought more reports of sports coaches and people in similar positions of responsibility taking advantage of their positions of respect and authority to harm children. The roles of coach and club leader do, and always have, carried with them an association of honour and trust. Parents trusted these leaders to look after children. In some sad cases that trust was exploited, only to come to light decades later.

It is often the case that the perpetrators are now men and women of straw. They may even have passed away, or moved abroad. In those cases solicitors acting for claimants will be looking for a defendant with the means to pay damages, and that is when they start focussing on the clubs and groups from which the perpetrators operated.

Their starting point will be the doctrine of vicarious liability, which traditionally fixed an employer with liability for the actions of an employee carried out during the course of his employment. Until 2000 the idea that sexually abusing anyone could be regarded as something carried out during the course of anyone's employment was unthinkable, but the last 10 years has seen this doctrine extended in the context of children and young people to cover:

  • abuse perpetrated at the place of their employment by a teacher, social worker, healthcare worker or anyone who had 'pastoral responsibility' for others
  • sexual abuse perpetrated by a teacher outside school in the summer holidays whilst ostensibly giving cricket coaching unconnected to his employment
  • abuse perpetrated by members of a religious order – an unincorporated association. It was accepted the members were not employees, but their relationship to the organisation being sued was 'analogous' to an employment situation
  • the activities of a scout chaplain and priest, that rendered an archbishop and scout association for his actions.

The explanation for all this change is a philosophical one - the courts found that an institutional defendant should be liable for torts that may fairly be regarded as risks of the business activities. The defendant need not be carrying on activities of a commercial nature or for profit, so this doctrine will cover clubs, religious orders, schools and hospitals.

But there are limits, so far at least. In GB v Stoke City Football Club & Anr [2015] a former apprentice footballer sought damages from the club where he had, aged 16 and 17, routinely been assaulted anally by professional players with rubbing ointment in an unpleasant practice known as 'gloving'.

The claimant argued that the system of apprenticeship in the club created an enhanced risk that the professionals would punish the apprentices if displeased with them, whether or not contractually authorised to do so. On the facts of this particular case the court held that the professional footballer had no express or implied power or duty conferred upon him by the club to discipline or chastise the apprentices. To accept the claimant's argument on that point would be to significantly and unjustifiably extend the boundaries of vicarious liability and would amount to holding that an employer should be vicariously liable for any assault on an apprentice or trainee by a full-time employee in all circumstances. 

In the absence of any formal duties or powers having been conferred on the professional players in relation to the apprentices, incidents such as those alleged by the claimant were serious assaults outside the course of the employment relationship.

So when will vicarious liability be imposed?

Where courts have imposed vicarious liability, they have focused on the power and authority given to the abuser by the institution and to what extent it is a risk flowing from the 'business' of the institution. 

Where vicarious liability has been successfully repudiated, courts have held the abuser's 'employment' was not connected to the risk or that the abuser's actions were not connected to the defendants business.

As always these cases will depend on their own facts. Claimants’ legal teams will focus on the vulnerability and trust between victim and perpetrator, looking to prove that harm to the victim was an inevitable risk of the defendant institution's business. Defendants will wish to carefully consider whether there is a true connection between the risk and their own enterprise.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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