Is a football club liable for the actions of its scout?
The Court of Appeal has recently overturned a decision which had made Blackpool Football Club (“the Club”) vicariously liable for the actions of one of its footballing scouts.
In the case of Blackpool Football Club Limited v DSN, the Claimant was aged 13 when he was sexually abused by Frank Roper, a football talent scout, during a football tour of New Zealand in 1987. Mr Roper was a convicted sexual offender who died in 2005. The Claimant, due to mental trauma, did not pursue a claim until 2018. The claim was brought against the Club on the grounds that Mr Roper had performed scouting activities for the Club and therefore, it was argued that he was effectively under the Club’s control.
At first instance, the Claimant’s claim was successful. The High Court held that the limitation period should be disapplied and the Claimant could proceed with his claim and, ultimately, the Judge found that the Club was vicariously liable for Mr Roper’s actions and the Claimant was awarded damages. The Club appealed against the decision on both the limitation and the vicarious liability points.
The Court of Appeal dismissed the Club’s appeal in relation to the limitation point. The Appeal Court found that the Judge was entitled to exercise discretion in disapplying the primary limitation period to allow the claim to be brought after 30 years. However, on the issue of vicarious liability, the Court of Appeal allowed the Club’s appeal and reversed the High Court’s decision.
The Court of Appeal found that although Mr Roper’s scouting activities were important to the Club, there was no evidence that the Club had any control or direction over what Mr Roper did. His activities were not exclusively for the benefit of the Club, he was involved in assisting boys who were trying to get into other football clubs. Mr Roper was acting as an unpaid volunteer who had a full-time job running his own business and there was a complete lack of control or power to direct his scouting activities by the Club. Further, save for a small financial contribution by the Club, the trip to New Zealand had been organised and paid for by Mr Roper. The Court therefore found that there was no contract or evidence of any ties imposing obligations on either party and Mr Roper was not obligated to scout for the Club.
The Court of Appeal emphasised that it was not sufficient to show that the running of a football club gave rise to a risk that it would attract sexual predators. Rather, it had to be shown that there was a relationship between the Club and the predator which involved a degree of control and direction of the abuser by the Club that made it “akin to employment” as opposed to someone whom the Club did not exercise any “vestigial degree of control” over, as was the position in this case.
This judgment is in accordance with the strict interpretation being adopted by the courts recently over vicarious liability cases and it is an important decision for and will be welcomed by many businesses, charities and associations who use volunteers to supplement their own staff.